Exhibit 4.3
LEUCADIA NATIONAL CORPORATION
7% Senior Notes due 2013
REGISTRATION RIGHTS AGREEMENT
-----------------------------
December 19, 2003
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Leucadia National Corporation, a New York corporation (the
"Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. (the "Initial
Purchaser"), upon the terms set forth in a purchase agreement, dated as of
December 19, 2003 (the "Purchase Agreement"), $25,000,000 aggregate principal
amount at maturity of the Company's 7% Senior Notes due 2013 (the "Initial
Notes"). In addition, the Company issued to Xxxxxxxxx & Company, Inc., pursuant
to an Indenture dated as of November 5, 2003, $25,000,000 aggregate principal
amount at maturity of the Company's 7% Senior Notes due 2013 (the "Series C
Notes," and together with the Initial Notes, the "Notes").
As an inducement to the Initial Purchaser to enter into the
Purchase Agreement, the Company agrees with the Initial Purchaser, for the
benefit of the holders of the Securities (as defined below) (including, without
limitation, the Initial Purchaser), as follows:
1. Definitions.
Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Advice: See the last paragraph of Section 5.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2(f).
Business Day: Any day, other than a Saturday, a Sunday or a
day on which banking institutions in the City of New York or at a place of
payment are authorized or obligated by law, regulation or executive order to be
closed.
Closing Date: December 19, 2003.
Combined Exchange Offer: See Section 2(a)(ii).
controlling person: See Section 7(a).
DTC: See Section 5(i).
Effectiveness Date: The 180th day following the Closing Date.
Effectiveness Period: See Section 3(a).
Event: See Section 4(a).
Event Date: See Section 4(a).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: The Initial Notes Exchange Offer or a Combined
Exchange Offer, as the context requires.
Exchange Offer Registration Statement: The Initial Notes
Exchange Offer Registration Statement or a registration statement covering a
Combined Exchange Offer, as the context requires.
Exchange Securities: The 7% Senior Notes due 2013 of the
Company, identical in all respects to the Notes, except for restrictive legends,
to be issued under the Indenture.
Filing Date: The 120th day following the Closing Date.
Holder: Each holder of Registrable Securities.
Holder Indemnified Parties: See Section 7(a).
indemnified party: See Section 7(c).
indemnifying parties: See Section 7(c).
Indenture: The Indenture, dated as of November 5, 2003,
between the Company and JPMorgan Chase Bank, as trustee, pursuant to which the
Initial Notes are being issued, as amended or supplemented from time to time, in
accordance with the terms thereof.
Initial Notes: See the Preamble hereto.
Initial Notes Exchange Offer Registration Statement: See
Section 2(a)(i).
Initial Notes Exchange Offer: See Section 2(a)(i).
Initial Shelf Registration: See Section 3(a).
Losses: See Section 7(a).
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Maximum Contribution Amount: See Section 7(d).
NASD: The National Association of Securities Dealers, Inc.
Notes: See the Preamble hereto.
Participating Broker-Dealer: See Section 2(f).
Person: An individual, trustee, corporation, limited liability
company, partnership, limited liability partnership, joint stock company, joint
venture, trust, unincorporated organization or association, government or any
agency or political subdivision thereof, union, business association, firm or
other entity.
Private Exchange: See Section 2(g).
Private Exchange Securities: See Section 2(g).
Prospectus: The prospectus included in a Registration
Statement at the time that such Registration Statement is declared effective
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Securities covered by such Registration
Statement, and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Registrable Securities: Any of the Initial Notes, the Private
Exchange Securities and the Exchange Securities received in the Initial Exchange
Offer that may not be sold without restriction under federal or state securities
law.
Registration Statement: Any registration statement of the
Company that covers any of the Securities and that is filed pursuant to the
provisions of this Agreement, including the Prospectus included therein, all
amendments and supplements to such registration statement and Prospectus
(including post-effective amendments), all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference therein.
Rule 144: Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Series C Holder: A holder of Series C Notes.
Series C Notes: See the Preamble hereto.
Series C Exchange Offer: An exchange offer to the Series C
Holders to issue and deliver to the Series C Holders, in exchange for the Series
C Notes, a like aggregate principal amount of Exchange Securities pursuant to
the Series C Registration Rights Agreement.
Series C Registration Rights Agreement: The Registration
Rights Agreement dated as of November 5, 2003 covering the Series C Notes.
Shelf Effectiveness Date: With respect to a Shelf
Registration, the 90th day after the filing of such Shelf Registration.
Shelf Filing Date: With respect to a Shelf Registration, the
30th day following (i) in the case of an Initial Shelf Registration, delivery of
the Shelf Notice triggering the obligation to file such Initial Shelf
Registration, and (ii) in the case of a Subsequent Shelf Registration, the
cessation of effectiveness of the prior Shelf Registration.
Shelf Notice: See Section 2(i).
Shelf Registration: The Initial Shelf Registration and any
Subsequent Shelf Registration.
Special Counsel: Counsel chosen by the holders of a majority
in aggregate principal amount of Securities.
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if any, the
trustee under any indenture governing the Exchange Securities or the Private
Exchange Securities.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
Weekly Liquidated Damages Amount: With respect to any Event,
an amount per week per $1,000 principal amount of Registrable Securities equal
to $0.05 for the first 90-day period immediately following the applicable Event
Date, increasing by an additional $0.05 per week per $1,000 principal amount of
Registrable Securities with respect to each subse-
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quent 90-day period, up to a maximum amount of $0.25 per week per $1,000
principal amount of Registrable Securities.
2. Exchange Offer.
(a) (i) The Company shall:
(A) prepare and file with the SEC promptly after the date
hereof, but in no event later than the Filing Date, a registration
statement (the "Initial Notes Exchange Offer Registration Statement")
on an appropriate form under the Securities Act with respect to a
proposed offer (the "Initial Notes Exchange Offer") to the Holders to
issue and deliver to such Holders, in exchange for the Initial Notes, a
like aggregate principal amount of Exchange Securities;
(B) use its reasonable best efforts to cause the Initial Notes
Exchange Offer Registration Statement to become effective as promptly
as practicable after the filing thereof, but in no event later than the
Effectiveness Date;
(C) use its reasonable best efforts to keep the Initial Notes
Exchange Offer Registration Statement effective until the consummation
of the Initial Notes Exchange Offer pursuant to its terms; and
(D) unless the Initial Notes Exchange Offer would not be
permitted by a policy of the SEC, commence the Initial Notes Exchange
Offer and use its reasonable best efforts to, on or prior to 45 days
after the Initial Notes Exchange Offer Registration Statement is
declared effective, consummate the Initial Notes Exchange Offer and
issue Exchange Securities in exchange for all Notes tendered prior
thereto in the Initial Notes Exchange Offer.
(E) The Initial Notes Exchange Offer shall not be subject to
any conditions, other than that the Initial Notes Exchange Offer does
not violate Applicable Law or any applicable interpretation of the
staff of the SEC. The term "Applicable Law" means any federal, state,
local or foreign statute, law (including, without limitation, common
law) or ordinance, or judgment, decree, rule, regulation or order of
any federal, state local or other governmental authority, governmental
or regulatory agency or body, court, arbitrator or self-regulatory
organization, domestic or foreign.
(ii) The Company may, if not prohibited by Applicable Law or
regulatory interpretation thereof, combine the Series C Exchange Offer
and the Initial Notes Exchange Offer (a "Combined Exchange Offer");
provided that in such event the provisions of Section 2(a)(i) shall
apply to Initial Notes involved in the Combined Exchange Offer;
provided further that with respect to the Series C Notes, the terms of
the Series C Registration Rights Agreement shall apply to the Series C
Notes included in the Combined Exchange Offer to the extent otherwise
still applicable.
(b) The Exchange Securities shall be issued under, and
entitled to the benefits of, the Indenture or a trust indenture that is
identical to the Indenture (other than such changes as
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are necessary to comply with any requirements of the SEC to effect or maintain
the qualification thereof under the TIA).
(c) In connection with any Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal that is an exhibit to the Exchange
Offer Registration Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by Applicable Law);
(iii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(iv) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer shall remain open; and
(v) otherwise comply with all laws applicable to the Exchange
Offer.
(d) As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange all Notes validly tendered and not
validly withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of Notes, Exchange Securities equal in aggregate
principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and each Private
Exchange Security will accrue from the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or, if no
interest has been paid on the Notes, from the date of original issue of the
Notes. Each Exchange Security and each Private Exchange Security shall bear
interest at the rate set forth thereon; provided, that interest with respect to
the period prior to the issuance thereof shall accrue at the rate or rates borne
by the Notes surrendered in exchange therefor from time to time during such
period.
(f) The Company shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," containing a summary statement of the positions taken or policies
made by the staff of the SEC with respect to the potential "underwriter" status
of any broker-dealer that is the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Exchange Securities received by such broker-dealer in
the Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of
Distribution" section
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shall also allow the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including (without
limitation) all Participating Brokers-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Securities. The Company shall use its reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective and to amend
and supplement the Prospectus to be lawfully delivered by all Persons subject to
the prospectus delivery requirement of the Securities Act for the shorter of (i)
such period of time as such Persons must comply with such requirements in order
to resell the Exchange Securities and (ii) the period ending when all
Registrable Securities covered by the Exchange Offer Registration Statement have
been sold pursuant thereto (the "Applicable Period").
(g) If, prior to consummation of the Exchange Offer, the
Initial Purchaser holds any Initial Notes acquired by it and having the status
as an unsold allotment in the initial distribution of the Initial Notes, the
Company shall, upon the request of the Initial Purchaser, simultaneously with
the delivery of the Exchange Securities in the Exchange Offer, issue (pursuant
to the same indenture as the Exchange Securities and subject to transfer
restrictions thereon) and deliver to the Initial Purchaser, in exchange for the
Initial Notes held by the Initial Purchaser (the "Private Exchange"), a like
principal amount of debt securities of the Company that are identical to the
Exchange Securities (the "Private Exchange Securities"). The Private Exchange
Securities shall bear the same CUSIP number as the Exchange Securities.
(h) The Company may require each Holder participating in the
Exchange Offer to represent to the Company that, at the time of the consummation
of the Exchange Offer: (i) any Exchange Securities received by such Holder in
the Exchange Offer will be acquired in the ordinary course of its business; (ii)
such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities within the meaning of
the Securities Act or resale of the Exchange Securities in violation of the
Securities Act; (iii) if such Holder is not a broker-dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities; (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, that it will deliver a
prospectus, as required by law, in connection with any resale of such Exchange
Securities; and (v) if such Holder is an affiliate of the Company, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act applicable to it.
(i) If: (i) prior to the consummation of the Exchange Offer,
the Company or the Holders of a majority in aggregate principal amount of
Registrable Securities determines in its or their reasonable judgment that (A)
the Exchange Securities would not, upon receipt, be tradeable by the Holders
thereof without restriction under the Securities Act and the Exchange Act and
without material restrictions under applicable Blue Sky or state securities laws
or (B) the interests of the Holders under this Agreement, taken as a whole,
would be materially adversely affected by the consummation of the Exchange
Offer; (ii) applicable interpretations of the staff of the SEC would not permit
the consummation of the Exchange Offer; (iii) subsequent to the consummation of
the Private Exchange, any Holder of Private Exchange Securities so requests;
(iv) the Exchange Offer is not consummated within 225 days of the Closing Date
for any reason; or (v) in the case of (A) any Holder prohibited by law or SEC
policy from participating in the Exchange Offer, (B) any Holder participating in
the Exchange Offer that receives Exchange Se-
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curities that may not be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of the Company within the meaning of the Securities Act) or (C) any
broker-dealer that holds Initial Notes acquired directly from the Company or any
of their respective affiliates and, in each such case contemplated by this
clause (v), such Holder notifies the Company within 20 Business Days (provided
that if a Holder has delivered a notice within such time period, any other
Holder meeting the requirements set forth in clause (v)(A), (B) or (C) may
thereafter submit a notice up to and including the date that is 20 Business Days
following the Shelf Filing Date) following consummation of the Exchange Offer,
then the Company shall promptly (and in any event within five Business Days)
deliver to the Holders (or in the case of an occurrence of any event described
in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice
thereof (the "Shelf Notice") and shall as promptly as possible thereafter (but
in no event later than the Shelf Filing Date) file an Initial Shelf Registration
pursuant to Section 3; provided, that no Holder (other than the Initial
Purchaser) shall be entitled to have Securities held by it covered by such Shelf
Registration unless such Holder agrees to be bound by all of the provisions of
this Agreement applicable to such Holder.
3. Shelf Registration.
If a Shelf Notice is required to be delivered pursuant to
clause (i), (ii), (iii) or (iv) of Section 2(i), then this Section 3 shall apply
to all Registrable Securities. Otherwise, upon consummation of the Exchange
Offer in accordance with Section 2, the provisions of this Section 3 shall apply
solely with respect to (i) Notes held by any Holder thereof not permitted to
participate in the Exchange Offer, (ii) Notes held by any broker-dealer that
acquired such Notes directly from the Company or any of their respective
affiliates, and (iii) Exchange Securities that are not freely tradeable, in each
case, as contemplated by clause (v) of Section 2(i).
(a) Initial Shelf Registration. The Company shall prepare and
file with the SEC a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering all of the
Registrable Securities (the "Initial Shelf Registration") subject to
the Company's right pursuant to Section 3(c) to exclude the Registrable
Securities of Holders that have not provided the information required
to be furnished by such Holders pursuant to Section 3(c) hereof. The
Company shall file with the SEC the Initial Shelf Registration as
promptly as possible following the occurrence of the event described in
Section 2(i) which triggered such filing obligation, but in no event
later than the Shelf Filing Date. The Initial Shelf Registration shall
be on Form S-1 or another appropriate form permitting registration of
such Registrable Securities for resale by such Holders in the manner or
manners designated by them (including, without limitation, one or more
underwritten offerings). The Company (i) shall not permit any
securities other than the Registrable Securities to be included in any
Shelf Registration, and (ii) shall use its reasonable best efforts to
cause the Initial Shelf Registration to be declared effective under the
Securities Act as promptly as practicable after the filing thereof (but
in no event later than the Shelf Effectiveness Date) and to keep the
Initial Shelf Registration continuously effective under the Securities
Act until the date that is 24 months after the date it is declared
effective (subject to extension pursuant to the last paragraph of
Section 5) (the "Effectiveness Period"), or such shorter period ending
when (i) all Registrable Securities covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated
in the Initial Shelf Registration, (ii) a Subsequent Shelf Registration
cover-
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ing all of the Registrable Securities has been declared effective under
the Securities Act, (iii) such Registrable Securities are eligible for
resale pursuant to Rule 144(k) under the Securities Act or (iv) there
ceases to be any outstanding Registrable Securities.
(b) Subsequent Shelf Registrations. If any Shelf Registration
ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the
Registrable Securities registered thereunder), the Company shall use
its reasonable best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall
within 30 days of such cessation of effectiveness file an amendment to
the Shelf Registration in a manner reasonably expected to obtain the
withdrawal of the order suspending the effectiveness thereof, or file
an additional "shelf" Registration Statement pursuant to Rule 415
covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Company shall use its reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective as promptly as practicable
after such filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration, and any previously filed Subsequent Shelf
Registration, was previously effective.
(c) Provision of Information. The Company may exclude from any
Shelf Registration the Registrable Securities of any Holder who,
without a reasonable basis, fails to furnish to the Company in writing,
within 20 days after receipt of a written request therefor, the
information specified in Item 507 or 508, as applicable, of Regulation
S-K under the Securities Act for use in connection with any Shelf
Registration or Prospectus or preliminary prospectus included therein.
No such Holder shall be entitled to liquidated damages pursuant to
Section 4 unless and until such Holder shall have provided such
information. Each Holder whose Registrable Securities are to be
included in a Shelf Registration Statement agrees to promptly furnish
to the Company all additional information required to be disclosed in
order to make the information previously furnished to the Company by
such Holder not materially misleading.
4. Liquidated Damages.
(a) The Company acknowledges and agrees that the Holders will
suffer damages, and that it would not be feasible to ascertain the extent of
such damages with precision, if the Company fails to fulfill its obligations
hereunder. Accordingly, in the event of such failure, the Company agrees to pay
liquidated damages to each Holder under the circumstances and to the extent set
forth below:
(i) if the Exchange Offer Registration Statement has not been
filed with the SEC on or prior to the Filing Date;
(ii) if the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the Effectiveness Date;
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(iii) if the Company has not exchanged Exchange Securities for
all Notes validly tendered in accordance with the terms of the Exchange
Offer within 45 days after the date on which the Exchange Offer
Registration Statement is declared effective by the SEC;
(iv) if obligated to file an Initial Shelf Registration and
the Company fails to file such Initial Shelf Registration with the SEC
on or prior to Shelf Filing Date;
(v) if an Initial Shelf Registration is filed and such Initial
Shelf Registration is not declared effective on or prior to the Shelf
Effectiveness Date; or
(vi) if a Shelf Registration is filed and declared effective
by the SEC but thereafter ceases to be effective without being
succeeded within 30 days by a Subsequent Shelf Registration filed and
declared effective;
(each of the foregoing an "Event," and the date on which the Event occurs being
referred to herein as an "Event Date").
Upon the occurrence of any Event, the Company shall pay, or
cause to be paid, in addition to amounts otherwise due under the Indenture and
the Registrable Securities, as liquidated damages, and not as a penalty, to each
Holder for each weekly period beginning on the Event Date an amount equal to the
Weekly Liquidated Damages Amount per $1,000 principal amount of Registrable
Securities held by such Holder; provided, that such liquidated damages will, in
each case, cease to accrue (subject to the occurrence of another Event) on the
date on which all Events have been cured. An Event under clause (i) above shall
be cured on the date that the Exchange Offer Registration Statement (or, if an
Initial Shelf Registration is required to be filed pursuant to clause (i), (ii)
or (iii) of Section 2(i), the date that such Initial Shelf Registration) is
filed with the SEC; an Event under clause (ii) above shall be cured on the date
that the Exchange Offer Registration Statement (or, if an Initial Shelf
Registration is required to be filed pursuant to clause (i), (ii) or (iii) of
Section 2(i), the date that such Initial Shelf Registration) is declared
effective by the SEC; an Event under clause (iii) above shall be cured on the
earlier of the date (A) the Exchange Offer is consummated with respect to all
Notes validly tendered or (B) the Company delivers a Shelf Notice to the Holders
and the Trustee pursuant to clause (i), (ii) or (iii) of Section 2(i); an Event
under clause (iv) above shall be cured on the date that such Initial Shelf
Registration is filed with the SEC; an Event under clause (v) above shall be
cured on the date that such Initial Shelf Registration is declared effective by
the SEC; and an Event under clause (vi) above shall be cured on the earlier of
(1) the date on which the applicable Shelf Registration is no longer subject to
an order suspending the effectiveness thereof or proceedings relating thereto or
(2) a new Subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Trustee within five Business
Days after each Event Date. The Company shall pay the liquidated damages due on
the Registrable Securities by depositing with the Trustee, in trust, for the
benefit of the Holders thereof, by 12:00 noon, New York City time, on or before
the applicable semi-annual interest payment date for the Registrable Securities,
immediately available funds in sums sufficient to pay the liquidated damages
then due. The liquidated damages amount due shall be payable in the same manner
as interest
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payments on the Notes on each interest payment date to the record Holder
entitled to receive the interest payment to be made on such date as set forth in
the Indenture.
5. Registration Procedures.
In connection with the registration of any Securities pursuant
to Sections 2 or 3, the Company shall effect such registrations to permit the
sale of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, as soon as practicable
after the date hereof but in any event on or prior to the Filing Date,
with respect to an Exchange Offer Registration Statement, and on or
prior to the Shelf Filing Date, with respect to a Shelf Registration,
as prescribed by Sections 2 and 3, respectively, and use its reasonable
best efforts to cause each such Registration Statement to become
effective and remain continuously effective as provided in this
Agreement; provided, that if (i) such filing is pursuant to Section 3
or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, (A) the Company shall notify the Holders of the Registrable
Securities covered by such Registration Statement, their Special
Counsel, each Participating Broker-Dealer, the managing underwriters,
if any, and their counsel of such filing at least five Business Days
prior to making such filing, (B) if requested, the Company shall
furnish to and afford the Holders of the Registrable Securities covered
by such Registration Statement, their Special Counsel, each
Participating Broker-Dealer, the managing underwriters, if any, and
their counsel a reasonable opportunity to review, and shall make
available for inspection by such Persons, copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed and such
financial and other information and books and records of the Company,
as shall be necessary, in the opinion of Special Counsel and the
respective counsels to such Participating Broker-Dealers and
underwriters, to conduct a reasonable due diligence investigation
within the meaning of the Securities Act, and (C) the Company shall
cause the members, managers, officers, directors and employees of the
Company, and counsel and independent certified public accountants of
the Company, to respond to such inquiries, as shall be necessary, in
the opinion of Special Counsel and the respective counsels to such
Participating Broker-Dealers and underwriters, to conduct a reasonable
due diligence investigation within the meaning of the Securities Act.
The Company may require each Holder to agree in writing to keep
confidential any non-public information relating to the Company
received by such Holder, to refrain from using such information as the
basis for any market transactions in the Securities of the Company and
not to disclose such information (other than to an affiliate or
prospective purchaser who agrees in writing to respect the
confidentiality provisions of this Section 5(a)) until such information
has been made generally available to the public unless the release of
such information is required by law or necessary to respond to
inquiries of regulatory authorities. The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto which the Holders must be afforded an opportunity to review
prior to
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the filing of such document, if the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such
Registration Statement, their Special Counsel, any Participating
Broker-Dealer or the managing underwriters, if any, or their counsel
shall reasonably object to such filing within five Business Days after
receipt of the Company's notice of filing described above in this
Section 5(a). A Holder shall be deemed to have reasonably objected to
such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact
necessary to make the statements therein not misleading or fails to
comply with the applicable requirements of the Securities Act.
(b) Provide an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause
the Indenture (or other indenture relating to the Registrable
Securities) to be qualified under the TIA not later than the effective
date of the first Registration Statement; in connection therewith,
effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use its reasonable best efforts to cause such trustee
to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective
amendments and post-effective amendments to the Registration Statement
as may be necessary in order to cause the Registration Statement to
become effective and to keep such Registration Statement continuously
effective for the time periods required hereby; cause the related
Prospectus to be supplemented by any Prospectus supplement required by
Applicable Law, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) under the Securities Act, and
comply fully with Rules 424, 430A and 462, as applicable, under the
Securities Act in a timely manner; and comply in all material respects
with the provisions of the Securities Act and the Exchange Act
applicable thereto with respect to the disposition of all securities
covered by such Registration Statement, as so amended, or in such
Prospectus, as so supplemented, in accordance with the intended methods
of distribution set forth in such Registration Statement, as so
amended, and such Prospectus, as so supplemented.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Company's receipt, a copy of
the order of the SEC declaring such Registration Statement and any
post-effective amendment thereto effective, (ii) such reasonable number
of copies of such Registration Statement and of each amendment and
supplement thereto (in each case including any documents incorporated
therein by reference and all exhibits (including exhibits incorporated
by reference) to such Registration Statement and each such amendment
and supplement), (iii) such reasonable number of copies of the
Prospectus included in such Registration Statement (including each
preliminary prospectus and each supplement thereto), and such
reasonable number of copies of the final Prospectus as filed by the
Company pursuant to Rule 424(b) under the Securities Act, in conformity
with the requirements of the Securities Act, and (iv) such other
documents (including any amendments and supplements required to be
filed pursuant to Sec-
-12-
tion 5(c) and any documents incorporated therein by reference and all
exhibits thereto, including exhibits incorporated by reference), as any
such Person may reasonably request. The Company hereby consents to the
use of the Prospectus by each of the selling Holders of Registrable
Securities and by each such Participating Broker-Dealer, as the case
may be, and the underwriters or agents, if any, and dealers (if any),
in connection with the offering and sale of the Registrable Securities
covered by, or the sale by Participating Broker-Dealers of the Exchange
Securities pursuant to, such Prospectus and any amendment or supplement
thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3
or (B) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, notify the selling
Holders of Registrable Securities, their Special Counsel, each
Participating Broker-Dealer and the managing underwriters, if any,
promptly (but in any event within five Business Days), and, if
requested by such Person, confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or Registration Statement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act, (ii) of the issuance by
the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of any Prospectus or the initiation of any proceedings for that
purpose, (iii) if, at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Securities, the representations and warranties of the
Company contained in any agreement (including any underwriting
agreement) contemplated by Section 5(n) below cease to be true and
correct in any material respect, (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or
the contemplation, initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event that makes any statement
made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference
to be untrue in any material respect or that requires the making of any
additions to or changes in such Registration Statement, Prospectus or
documents so that it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which such statements were made, not misleading,
(vi) of the Company's reasonable determination that a post-effective
amendment to a Registration Statement would be appropriate, and (vii)
of any request by the SEC for amendments to the Registration Statement
or supplements to the Prospectus or for additional information relating
thereto.
(f) Use its reasonable best efforts to register or qualify,
and, if applicable, to cooperate with the selling Holders of
Registrable Securities, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of, Registrable
Securities to be included in a Registration Statement for offer and
sale under the securities or Blue Sky laws of such juris-
-13-
dictions within the United States as any selling Holder, Participating
Broker-Dealer or the managing underwriters reasonably request in
writing; and, if Securities are offered other than through an
Underwritten Offering, the Company shall cause its counsel to perform
Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(f) at the expense of
the Company; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions
of the Securities covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to (i)
register or qualify generally to do business in any jurisdiction where
it is not then so qualified, (ii) take any action that would subject it
to general service of process in any jurisdiction where it is not then
so subject or (iii) take any action that would subject it to general
taxation in respect of doing business in any such jurisdiction where it
is not then so subject.
(g) Use its reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the
Securities for sale in any jurisdiction, and, if any such order is
issued, use its best efforts to obtain the withdrawal or lifting of any
such order at the earliest possible time.
(h) If (i) a Shelf Registration is filed pursuant to Section 3
or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, and if requested by
the managing underwriters, if any, such Participating Broker-Dealer or
the Holders of a majority in aggregate principal amount of the
Registrable Securities, (A) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, or such Holders reasonably request to be included
therein as required to comply with any Applicable Law and (B) make all
required filings of such Prospectus supplement or such post-effective
amendment as soon as practicable after the Company has received
notification of such matters required by Applicable Law to be
incorporated in such Prospectus supplement or post-effective amendment.
(i) If (i) a Shelf Registration is filed pursuant to Section 3
or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, cooperate with the
selling Holders, such Participating Broker-Dealer and the managing
underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company ("DTC");
and enable such Registrable Securities to be in such denominations and
registered in such names as the managing underwriters, if any, such
Participating Broker-Dealer or the Holders may request.
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(j) If (i) a Shelf Registration is filed pursuant to Section 3
or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, upon the occurrence
of any event contemplated by Section 5(e)(v), 5(e)(vi) or 5(e)(vii), as
promptly as practicable prepare a post-effective amendment to the
Registration Statement, a supplement to the related Prospectus or a
supplement or amendment to any such document incorporated or deemed to
be incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder or to the purchasers of
the Exchange Securities to whom such Prospectus will be delivered by a
Participating Broker-Dealer, such Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading,
and, if SEC review is required, use its reasonable best efforts to
cause such post-effective amendment to be declared effective as soon as
practicable.
(k) Use its reasonable best efforts to cause the Securities
covered by a Registration Statement to be rated with the appropriate
rating agencies, if appropriate, and if so requested by the holders of
a majority in aggregate principal amount of Securities covered by such
Registration Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable
trustee with printed certificates for the Securities in a form eligible
for deposit with DTC and (ii) provide a CUSIP number for each of the
Securities.
(m) Use its reasonable best efforts to cause all Securities
covered by such Registration Statement to be listed on each securities
exchange, if any, on which similar debt securities issued by the
Company are then listed.
(n) If a Shelf Registration is filed pursuant to Section 3,
enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in Underwritten Offerings)
and take all such other actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of Registrable
Securities being sold) in order to expedite or facilitate the
registration or the disposition of such Registrable Securities, and in
such connection, whether or not an underwriting agreement is entered
into and whether or not the registration is an Underwritten
Registration, (i) make such representations and warranties to the
Holders and the underwriters, if any, with respect to the business of
the Company and its subsidiaries, if any, and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to
be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by Company to underwriters in
Underwritten Offerings, and confirm the same if and when reasonably
requested; (ii) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any,
and the Holders of a majority in aggregate principal amount of the
Registrable Securities being sold), addressed to each selling Holder
and
-15-
each of the underwriters, if any, covering the matters customarily
covered in opinions requested in Underwritten Offerings; (iii) obtain
"cold comfort" letters and updates thereof (which letters and updates
(in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters and each selling
Holder, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with Underwritten Offerings and such other matters as reasonably
requested by underwriters; and (iv) deliver such documents and
certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold
and the managing underwriters, if any, to evidence the continued
validity of the representations and warranties of the Company and its
subsidiaries, if any, made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement
or other similar agreement entered into by the Company.
(o) Comply with all applicable rules and regulations of the
SEC and make generally available to its security holders earnings
statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing on the first day of the fiscal quarter
following each fiscal quarter in which Registrable Securities are sold
to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private
Exchange, obtain an opinion of counsel to the Company (in form, scope
and substance reasonably satisfactory to the Initial Purchaser),
addressed to all Holders participating in the Exchange Offer or Private
Exchange, as the case may be, to the effect that (i) the Company has
duly authorized, executed and delivered the Exchange Securities or the
Private Exchange Securities, as the case may be, and the Indenture and
(ii) the Exchange Securities or the Private Exchange Securities, as the
case may be, and the Indenture constitute legal, valid and binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms, except as such enforcement may
be subject to (A) applicable bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting creditors' rights and remedies
generally and (B) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law).
(q) If an Exchange Offer or Private Exchange is to be
consummated, upon delivery of the Registrable Securities by such
Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be, the Company shall mark, or
caused to be marked, on such Registrable Securities that such
Registrable Securities are being can-
-16-
celled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, and in no event shall such Registrable
Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD.
(s) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
Each Holder and each Participating Broker-Dealer agrees by
acquisition of such Registrable Securities or Exchange Securities that, upon
receipt of written notice from the Company of the happening of any event of the
kind described in Section 5(e)(ii), 5(e)(iv), 5(e)(v), 5(e)(vi) or 5(e)(vii),
such Holder will forthwith discontinue disposition (in the jurisdictions
specified in a notice of a 5(e)(iv) event, and elsewhere in a notice of a
5(e)(ii), 5(e)(v), 5(e)(vi) or 5(e)(vii) event) of such Securities covered by
such Registration Statement or Prospectus until the earlier of (i) such Holder's
receipt of the copies of the amended or supplemented Prospectus contemplated by
Section 5(j); or (ii) the time such Holder is advised in writing (the "Advice")
by the Company that offers or sales in a particular jurisdiction may be resumed,
or that the use of the applicable Prospectus may be resumed, as the case may be,
and has received copies of any amendments or supplements thereto. If so directed
by the Company in such notice, each Holder and each Participating Broker-Dealer
will deliver to the Company (at the Company's expense) all copies of the
Prospectus covering such Securities that was current at the time of such
Xxxxxx's or Participating Broker-Dealer's receipt of such notice. If the Company
shall give such notice, each of the Effectiveness Period and the Applicable
Period shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each seller of such Securities covered by such Registration Statement shall have
received (x) the copies of the amended or supplemented Prospectus contemplated
by Section 5(j) or (y) the Advice.
6. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company
whether or not the Exchange Offer is consummated or the Exchange Offer
Registration Statement or a Shelf Registration is filed or becomes effective,
including, without limitation:
(i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with
the NASD and (B) fees and expenses of compliance with state securities
or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of
the Registrable Securities or Exchange Securities and determination of
the eligibility of the Registrable Securities or Exchange Securities
for investment under the laws of such jurisdictions (x) where the
Holders are located, in the case of the Exchange Securities, or (y) as
provided in Section 5(f), in the case of Registrable Securities or
-17-
provided in Section 5(f), in the case of Registrable Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during
the Applicable Period));
(ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities or
Exchange Securities in a form eligible for deposit with DTC and of
printing prospectuses if the printing of prospectuses is requested by
the managing underwriters, if any, or, in respect of Registrable
Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period, by the Holders of a
majority in aggregate principal amount of the Registrable Securities
included in any Registration Statement or of such Exchange Securities,
as the case may be);
(iii) messenger, telephone, duplication, word processing and
delivery expenses incurred by the Company in the performance of its
obligations hereunder;
(iv) fees and disbursements of counsel for the Company and,
subject to Section 6(b), the Holders;
(v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an
offering pursuant to Section 3 of Schedule E to the By-laws of the
NASD, but only where the need for such a "qualified independent
underwriter" arises due to a relationship with the Company;
(vii) Securities Act liability insurance, if the Company so
desires such insurance;
(viii) fees and expenses of all other Persons, including
special experts, retained by the Company; internal expenses of the
Company (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), and
the expenses of any annual audit; and
(ix) rating agency fees and the fees and expenses incurred in
connection with the listing of the Securities to be registered on any securities
exchange.
(b) The Company shall reimburse the Holders for the reasonable
fees and disbursements of not more than one counsel (in addition to appropriate
local counsel) chosen by the Holders of a majority in aggregate principal amount
of the Registrable Securities to be included in any Registration Statement and
other reasonable and necessary out-of-pocket expenses of the Holders incurred in
connection with the registration of the Registrable Securities.
7. Indemnification.
(a) Indemnification by the Company. The Company shall, without
limitation as to time, indemnify and hold harmless each Holder and each
Participating Broker-Dealer, each Person who controls (within the meaning of
Section 15 of the Securities Act or Section 20(a) of
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the Exchange Act (any of such persons being hereinafter referred to as a
"controlling person")) each such Holder and any such Participating Broker-Dealer
and the members, managers, officers, directors, partners, employees,
representatives and agents of each such Holder, Participating Broker-Dealer and
controlling person (collectively, the "Holder Indemnified Parties"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of preparation and
reasonable attorneys' fees) and expenses (including, without limitation, costs
and expenses incurred in connection with investigating, preparing, pursuing or
defending against any of the foregoing) (collectively, "Losses"), as incurred,
directly or indirectly caused by, related to, based upon, arising out of or in
connection with any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, preliminary prospectus, Prospectus or
form of prospectus, or in any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as such
Losses are based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company by such Holder or
Participating Broker-Dealer expressly for use therein; provided, that the
Company shall not be liable under the indemnity provided in this Section 7(a) to
any Holder Indemnified Party for any Losses that (A) result solely from an
untrue statement of a material fact contained in, or the omission of a material
fact from, any preliminary prospectus, which untrue statement or omission was
corrected in the Prospectus (as then amended or supplemented) if it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (1) such Holder Indemnified Party sold the Securities to the
person alleging such Loss and failed to send or give, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented), if required by law to have so delivered it, and (2) the Company
had previously furnished copies of the corrected Prospectus to such Holder
Indemnified Party within a reasonable amount of time prior to such sale or such
confirmation, and (3) the corrected Prospectus, if delivered, would have been a
complete defense against the person asserting such Loss. The Company shall also
indemnify underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their members,
managers, officers, directors, agents and employees and each of their respective
controlling persons to the same extent as provided above with respect to the
indemnification of the Holder Indemnified Parties.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement, preliminary prospectus, Prospectus
or form of prospectus, or any amendment or supplement thereto, in which a Holder
is participating, such Holder shall furnish to the Company in writing such
information as the Company reasonably requests for use in connection with any
such Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, any amendment or supplement thereto, and shall, severally and not
jointly, without limitation as to time, indemnify and hold harmless the Company,
its members, managers, directors, officers, agents and employees, each
controlling person of the Company and the members, managers, directors,
officers, agents or employees of such controlling persons, to the fullest extent
lawful, from and against any and all Losses, as incurred, arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in any such Registration Statement, preliminary prospectus, Prospectus or form
of prospectus, or any amendment or supplement thereto, or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they
-19-
were made, not misleading to the extent, but only to the extent, that such
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact is contained in or omitted from any
information so furnished in writing by such Holder to the Company expressly for
use in any Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or any amendment or supplement thereto. In no event shall the
liability of any selling Holder be greater in amount than such Holder's Maximum
Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnification
hereunder (an "indemnified party"), such indemnified party shall promptly notify
the party or parties from which such indemnification is sought (the
"indemnifying parties") in writing; provided, that the failure to so notify the
indemnifying parties shall not relieve the indemnifying parties from any
obligation or liability except to the extent (but only to the extent) that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal) that the indemnifying parties have been
prejudiced materially by such failure.
The indemnifying parties shall have the right, exercisable by
giving written notice to an indemnified party, within 20 Business Days after
receipt of written notice from such indemnified party of such Proceeding, to
assume, at their expense, the defense of any such Proceeding; provided, that an
indemnified party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or parties
unless: (i) the indemnifying parties have agreed to pay such fees and expenses;
(ii) the indemnifying parties shall have failed promptly to assume the defense
of such Proceeding or shall have failed to employ counsel reasonably
satisfactory to such indemnified party; or (iii) the named parties to any such
Proceeding (including any impleaded parties) include both such indemnified party
and one or more indemnifying parties (or any affiliates or controlling persons
of any of the indemnifying parties), and such indemnified party shall have been
advised by counsel that there may be one or more defenses available to such
indemnified party that are in addition to, or in conflict with, those defenses
available to the indemnifying party or such affiliate or controlling person (in
which case, if such indemnified party notifies the indemnifying parties in
writing that it elects to employ separate counsel at the expense of the
indemnifying parties, the indemnifying parties shall not have the right to
assume the defense thereof and the reasonable fees and expenses of such counsel
shall be at the expense of the indemnifying parties; it being understood,
however, that, the indemnifying parties shall not, in connection with any one
such Proceeding or separate but substantially similar or related Proceedings in
the same jurisdiction, arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (together with appropriate local counsel) at any time for such
indemnified party).
No indemnifying party shall be liable for any settlement of
any such Proceeding effected without its written consent, but if settled with
its written consent, or if there be a final judgment for the plaintiff in any
such Proceeding, each indemnifying party agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each indemnified
party from and against any and all Losses by reason of such settlement or
judgment. The indemnifying party shall not consent to the entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to each in-
-20-
demnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such Proceeding for
which such indemnified party would be entitled to indemnification hereunder
(whether or not any indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 7
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 7), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Losses, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the sale of Registrable Securities, or (ii) if the allocation
provided by clause (i) above is not permitted by Applicable Law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such statement or
omission. The amount paid or payable by an indemnified party as a result of any
Losses shall be deemed to include any legal or other fees or expenses incurred
by such party in connection with any Proceeding, to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided
for in Section 7(a) or 7(b) was available to such party.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 7(d), an indemnifying
party that is a selling Holder shall not be required to contribute, in the
aggregate, any amount in excess of such Holder's Maximum Contribution Amount. A
selling Holder's "Maximum Contribution Amount" shall equal the excess, if any,
of (i) the aggregate proceeds received by such Holder pursuant to the sale of
the Registrable Securities giving rise to such indemnification obligation over
(ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective principal amount of the
Registrable Securities held by each Holder hereunder and not joint.
The indemnity and contribution agreements contained in this
Section 7 are in addition to any liability that the indemnifying parties
otherwise may have to the indemnified parties.
-21-
8. Rule 144 and Rule 144A.
The Company covenants that (a) during any period that it is
required to file reports under the Securities Act or the Exchange Act, it shall
file all reports required to be filed by it in a timely manner in order to
permit resales of Registrable Securities pursuant to Rule 144 under the
Securities Act and (b) during any period that it is not required to file such
reports, it shall, upon the request of any Holder, make available to each Holder
or beneficial owner of Registrable Securities and to any prospective purchaser
of Registrable Securities designated by such Holder or beneficial owner the
information required by Rule 144A(d)(4) under the Securities Act to permit
resales of Registrable Securities pursuant to Rule 144A. The Company shall take
such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act pursuant to the exemptions
provided by Rule 144 and Rule 144A. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether such Issuer has
complied with such information requirements. Nothing in this Section 8 shall be
deemed to require the Company to register any Securities pursuant to the
Exchange Act.
9. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an Underwritten Offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Securities included in such offering with the consent of the
Company, which consent shall not be unreasonably withheld or delayed.
No Holder may participate in any Underwritten Registration
hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
10. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of any
of its obligations under this Agreement (other than an Event), each Holder, in
addition to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchaser, in the Purchase Agreement,
or granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for loss incurred by reason of such
as breach by the Company and hereby further agrees that, in the event of any
action for specific performance in respect of such a breach by the Company, the
Company shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered
into, as of the date hereof, and shall not enter into, after the date of this
Agreement, any agreement with respect to its securities that is inconsistent
with the rights granted to the Holders in this Agreement or
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otherwise conflicts with the provisions hereof. For the avoidance of doubt,
nothing in this Agreement shall limit the Company's ability to register shares
underlying stock options granted to the Company's directors, officers and
employees in the ordinary course of the Company's business.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of at least a majority of the then outstanding aggregate principal amount of
Registrable Securities; provided, that Sections 4(a) and 7 shall not be amended,
modified or supplemented, and waivers or consents to departures from this
proviso may not be given, unless the Company has obtained the written consent of
each Holder. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority in aggregate principal
amount of the Registrable Securities being sold by such Holders pursuant to such
Registration Statement; provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, certified
first-class mail with return receipt requested, next-day air courier or
facsimile:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
10(d), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar (as defined in the
Indenture); and
(ii) if to the Company, initially at Leucadia National
Corporation, 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, facsimile
number (000) 000-0000, Attention: Chief Financial Officer, with a copy
to Xxxx, Gotshal & Xxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, facsimile number (000) 000-0000, Attention: Xxxxxx X. Xxxxxxxxx,
Esq., and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 10(d).
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier, if sent by next-day
air courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in the Indenture.
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(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof. When a reference is made in this Agreement to a Section,
paragraph, subparagraph, Schedule or Exhibit, such reference shall mean a
Section, paragraph, subparagraph, Schedule or Exhibit to this Agreement unless
otherwise indicated. The words "include," "includes," and "including" when used
in this Agreement shall be deemed in each case to be followed by the words
"without limitation." The phrases "the date of this Agreement," "the date
hereof," and terms of similar import, unless the context otherwise requires,
shall be deemed to refer to December 19, 2003. The words "hereof," "herein,"
"herewith," "hereby" and "hereunder" and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole and not to
any particular provision of this Agreement.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED, AND THE RIGHTS OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(b) OF NEW
YORK CIVIL PRACTICE LAWS AND RULES. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN
IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN
IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE
COMPANY IR-
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REVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH HEREIN,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE INITIAL PURCHASER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their respective best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to the registration rights granted by the
Company in respect of securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter except that the Series C Registration Rights
Agreement shall continue to apply to the Series C Notes as noted herein.
(k) Attorneys' Fees. In any Proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the courts, shall be
entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(l) Securities Held by the Company or its Affiliates. Whenever
the consent or approval of Holders of a specified percentage of the principal
amount of Registrable Securities is required hereunder, Registrable Securities
held by the Company or its affiliates (as such term is defined in Rule 405 under
the Securities Act) (other than Holders deemed to be such affiliates solely by
reason of their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(m) Third Party Beneficiaries. The Series C Holders shall be
third party beneficiaries of the terms of this Agreement to the extent that they
are participants in any Exchange Offer pursuant to this Agreement.
[signature pages follow this page]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
LEUCADIA NATIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and
Chief Financial Officer
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice Chairman
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