Exhibit 4.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
Dated as of June 1, 1999
among
XXXX'X CORPORATION
and
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
BNY CAPITAL MARKETS, INC.,
BANC ONE CAPITAL MARKETS, INC.
as the Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the
"Agreement") is made and entered into as of June 1,
1999, by and among XXXX'X CORPORATION, a Wisconsin
corporation (the "Company"), and XXXXXXX LYNCH, PIERCE,
XXXXXX & XXXXX INCORPORATED, XXXXXX XXXXXXX & CO.
INCORPORATED, BNY CAPITAL MARKETS, INC. and BANC ONE
CAPITAL MARKETS, INC. (collectively, the "Initial
Purchasers").
This Agreement is made pursuant to the
Purchase Agreement dated May 26, 1999 by and among the
Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company
to the Initial Purchasers of $200,000,000 aggregate
principal amount of the Company's 7 1/4% Debentures due
2029 (the "Debentures"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement
and in satisfaction of a condition to the Initial
Purchasers' obligations thereunder, the Company has
agreed to provide to the Initial Purchasers and their
respective direct and indirect transferees and assigns
the registration rights set forth in this Agreement.
The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the
parties hereto agree as follows:
1. Definitions. As used in this Agreement,
the following capitalized defined terms shall have the
following meanings:
"1933 Act" shall mean the Securities Act of
1933, as amended from time to time, and the rules and
regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time, and the
rules and regulations of the SEC promulgated
thereunder.
"Closing Time" shall mean the Closing Time as
defined in the Purchase Agreement.
"Company" shall have the meaning set forth in
the preamble and also includes the Company's
successors.
"Depositary" shall mean The Depository Trust
Company, or any other depositary appointed by the
Company, including any agent thereof; provided,
however, that any such depositary must at all times
have an address in the Borough of Manhattan, in The
City of New York.
"Exchange Debentures" shall mean the 7 1/4%
Debentures due 2029 issued by the Company under the
Indenture, containing terms identical to the Debentures
(except that (i) interest thereon shall accrue from the
last date on which interest was paid on the Debentures
or, if no such interest has been paid, from the Closing
Time, (ii) the transfer restrictions thereon shall be
eliminated and (iii) certain provisions relating to an
increase in the stated rate of interest thereon shall
be eliminated) to be offered to Holders of Registrable
Debentures in exchange for Registrable Debentures
pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange
offer by the Company of Exchange Debentures for
Registrable Debentures pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a
registration under the 1933 Act effected pursuant to
Section 2(a) hereof.
"Exchange Offer Registration Statement" shall
mean an exchange offer registration statement on Form S-
4 covering the Registrable Debentures (or, if
applicable, on another appropriate form), and all
amendments and supplements to such registration
statement, in each case including the Prospectus
contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Holders" shall mean the Initial Purchasers,
for so long as they own any Registrable Debentures, and
each of their respective successors, assigns and direct
and indirect transferees who become registered owners
of Registrable Debentures under the Indenture.
"Indenture" shall mean the Indenture dated as
of December 1, 1995 by and between the Company and The
Bank of New York, as Trustee, as supplemented by the
First Supplemental Indenture dated as of June 1, 1999,
between the Company and the Trustee, in each case
relating to the Debentures and the Exchange Debentures
and as the same may be amended and supplemented from
time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning
set forth in the preamble of this Agreement.
"Majority Holders" shall mean the Holders of
a majority of the aggregate principal amount of
Registrable Debentures outstanding; provided that
whenever the consent or approval of Holders of a
specified percentage of Registrable Debentures is
required hereunder, Registrable Debentures held by the
Company or any of its affiliates (as such term is
defined in Rule 405 under the 0000 Xxx) (other than the
Initial Purchasers or subsequent holders of Registrable
Debentures) if such subsequent holders are deemed
to be such affiliates solely by reason of their holding of
such Registrable Debentures shall be disregarded in
determining whether such consent or approval was given
by the Holders of such required percentage or amount.
"NASD" shall mean the National Association of
Securities Dealers, Inc.
"Participating Broker-Dealer" shall have the
meaning set forth in Section 3(f).
"Person" shall mean an individual,
partnership, joint venture, limited liability company,
corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus
included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement,
including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable
Debentures covered by a Shelf Registration Statement,
and by all other amendments and supplements to a
prospectus, including post-effective amendments, and in
each case including all material incorporated by
reference therein.
"Purchase Agreement" shall have the meaning
set forth in the preamble of this Agreement.
"Registrable Debentures" shall mean the
Debentures; provided, however, that the Debentures
shall cease to be Registrable Debentures when (i) a
Registration Statement with respect to such Debentures
shall have been declared effective under the 1933 Act
and such Debentures shall have been disposed of
pursuant to such Registration Statement, (ii) such
Debentures shall have been sold to the public pursuant
to Rule 144 (or any similar provision then in force,
but not Rule 144A) under the 1933 Act, (iii) such
Debentures shall have ceased to be outstanding or (iv)
such Debentures have been exchanged for Exchange
Debentures upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and
all expenses incident to performance of or compliance
by the Company with this Agreement, including without
limitation: (i) all SEC, stock exchange or NASD
registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with
state or other securities or blue sky laws and
compliance with the rules of the NASD (including
reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with state or
other securities or blue sky qualification of any of
the Exchange Debentures or Registrable Debentures),
(iii) all expenses of any Persons in preparing,
printing and distributing any Registration Statement,
any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales
agreements, certificates representing the Exchange
Debentures and other documents relating to the performance
of and compliance with this Agreement, (iv)
all rating agency fees, (v) all fees and expenses
incurred in connection with the listing, if any, of any
of the Exchange Debentures or such Registrable
Debentures, covered by a Shelf Registration Statement,
as applicable, on any securities exchange or exchanges,
(vi) all fees and disbursements relating to the
qualification of the Indenture under applicable
securities laws, (vii) the fees and disbursements of
counsel for the Company and the fees and expenses of
the independent public accountants of the Company,
including the expenses of any special audits or "cold
comfort" letters required by or incident to such
performance and compliance, (viii) the fees and
expenses of a "qualified independent underwriter" as
defined by Conduct Rule 2720 of the NASD (if required
by the NASD rules) in connection with the offering of
the Registrable Debentures, (ix) the reasonable fees
and expenses of the Trustee, any registrar, any
depositary and paying agent, including their respective
counsel, and any escrow agent or custodian and (x) in
the case of an underwritten offering, any fees and
disbursements of the underwriter customarily required
to be paid by issuers or sellers of such securities and
the fees and expenses of any special experts retained
by the Company in connection with any Registration
Statement but excluding (except as otherwise provided
herein) fees of counsel to the underwriters or the
Holders and underwriting discounts and commissions and
any transfer taxes, if any, relating to the sale or
disposition of Registrable Debentures by a Holder.
"Registration Statement" shall mean any
registration statement of the Company relating to any
offering of the Exchange Debentures or Registrable
Debentures pursuant to the provisions of this
Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective
amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange
Commission.
"Shelf Registration" shall mean a
registration effected pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a
"shelf" registration statement of the Company pursuant
to the provisions of Section 2(b) of this Agreement
which covers all of the Registrable Debentures on an
appropriate form under Rule 415 under the 1933 Act, or
any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration
statement, including post-effective amendments, in each
case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall mean the trustee under the
Indenture.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not
prohibited by any applicable law or applicable
interpretation of the staff of the SEC, the Company
shall (A) file with the SEC within 135 calendar days
after the Closing Time an Exchange Offer Registration
Statement covering the offer by the Company to the
Holders to exchange all of the Registrable Debentures
for Exchange Debentures, (B) use its reasonable best
efforts to cause such Exchange Offer Registration
Statement to be declared effective by the SEC within
180 calendar days after the Closing Time, (C) use its
reasonable best efforts to cause such Registration
Statement to remain effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts
to consummate the Exchange Offer within 45 calendar
days after the effective date of the Exchange Offer
Registration Statement. The Exchange Debentures will
be issued under the Indenture. Upon the effectiveness
of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer, it
being the objective of such Exchange Offer to enable
each Holder (other than Participating Broker-Dealers
(as defined in Section 3(f)) eligible and electing to
exchange Registrable Debentures for Exchange Debentures
(assuming that such Holder is not an affiliate of the
Company within the meaning of Rule 405 under the 1933
Act, acquires the Exchange Debentures in the ordinary
course of such Holder's business and has no
arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of
distributing the Exchange Debentures) to trade such
Exchange Debentures from and after their receipt
without any limitations or restrictions under the 1933
Act and without material restrictions under the
securities laws of a substantial proportion of the
several states of the United States.
In connection with the 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 and related
documents;
(ii) keep the Exchange Offer open for
not less than 20 business days (or longer if
required by applicable federal and state
securities laws) after the date notice thereof is
mailed to the Holders;
(iii) use the services of the Depositary for the
Exchange Offer with respect to Debentures evidenced by
global certificates;
(iv) permit Holders to withdraw tendered Registrable
Debentures at any time prior to the close of business,
New York City time, on the last business day on which
the Exchange Offer shall remain open, by sending to the
institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name
of such Holder, the principal amount of Registrable
Debentures delivered for exchange, and a statement that
such Holder is withdrawing its election to have such
Debentures exchanged; and
(v) otherwise comply in all material
respects with all applicable federal and state
securities laws relating to the Exchange Offer.
As soon as practicable after the close of the
Exchange Offer, the Company shall:
(i) accept for exchange Registrable
Debentures duly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with
the terms of the Exchange Offer Registration
Statement and the letter of transmittal which is
an exhibit thereto;
(ii) deliver, or cause to be delivered,
to the Trustee for cancellation all Registrable
Debentures so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to
authenticate and deliver Exchange Debentures to
each Holder of Registrable Debentures equal in
principal amount to the principal amount of the
Registrable Debentures of such Holder so accepted
for exchange.
Interest on each Exchange Note will accrue
from the last date on which interest was paid on the
Registrable Debentures surrendered in exchange therefor
or, if no interest has been paid on the Registrable
Debentures, from the Closing Time. The Exchange Offer
shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any exchange
by a Holder, does not violate applicable law or any
applicable interpretation of the staff of the SEC, (ii)
that no action or proceeding shall have been instituted
or threatened in any court or before any governmental
agency with respect to the Exchange Offer which, in the
Company's judgment, would impair the ability of the
Company to proceed with the Exchange Offer, (iii) that
no law, rule or regulation or applicable
interpretations of the staff of the SEC has been issued
or promulgated which, in the good faith determination
of the Company, does not permit the Company to effect
the Exchange Offer and (iv) that the Holders tender the
Registrable Debentures to the Company in accordance
with the Exchange Offer. Each Holder of Registrable
Debentures (other than Participating Broker-Dealers)
who wishes to exchange such Registrable Debentures for
Exchange Debentures in the Exchange Offer shall have
represented that (i) it is not an affiliate (as defined
in Rule 405 under the 0000 Xxx) of the Company or, if
it is an affiliate, it will comply with the
registration and prospectus delivery requirements of
the 1933 Act, to the extent applicable, (ii) any
Exchange Debentures to be received by it will be
acquired in the ordinary course of business, (iii) at
the time of the commencement of the Exchange Offer, it
has no arrangement with any Person to participate in
the distribution (within the meaning of the 0000 Xxx)
of the Debentures or the Exchange Debentures, (iv) it
is not acting on behalf of any person who could not
truthfully make the foregoing representations and (v)
it shall have made such other representations as may be
reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of
Form S-4 or another appropriate form under the 1933 Act
available or for the Exchange Offer Registration
Statement to be declared effective. To the extent
permitted by law, the Company shall inform the Initial
Purchasers of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial
Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable
Debentures in the Exchange Offer.
(b) Shelf Registration. (i) If, because of
any change in law or applicable interpretations thereof
by the Staff of the SEC, the Company is not permitted
to effect the Exchange Offer as contemplated by Section
2(a) hereof, or (ii) if for any other reason the
Exchange Offer Registration Statement is not declared
effective within 180 calendar days following the
Closing Time or the Exchange Offer is not consummated
within 45 days after effectiveness of the Exchange
Offer Registration Statement (provided that if the
Exchange Offer Registration Statement shall be declared
effective after such 180-day period or if the Exchange
Offer shall be consummated after such 45-day period,
then the Company's obligations under this clause (ii)
arising from the failure of the Exchange Offer
Registration Statement to be declared effective within
such 180-day period or the failure of the Exchange
Offer to be consummated within such 45-day period,
respectively, shall terminate), or (iii) if any Holder
(other than an Initial Purchaser) is not eligible to
participate in the Exchange Offer or elects to
participate in the Exchange Offer but does not receive
fully tradeable Exchange Debentures pursuant to the
Exchange Offer or (iv) upon the written request of any
of the Initial Purchasers within 90 days following the
consummation of the Exchange Offer; provided that such
Initial Purchaser shall hold Registrable Debentures
that it acquired directly from the Company and if such
Initial Purchaser is not permitted, in the opinion of
counsel to such Initial Purchaser, pursuant to
applicable law or applicable interpretation of the
staff of the SEC, to participate in the Exchange Offer,
the Company shall, at its cost:
(A) as promptly as practicable, but no
later than (a) the 180th day after the Closing
Time or (b) the 60th day after such filing
obligations arises, whichever is later, file with
the SEC a Shelf Registration Statement relating to
the offer and sale of the Registrable Debentures
by the Holders from time to time in accordance
with the methods of distribution elected by the
Majority Holders of such Registrable Debentures
and set forth in such Shelf Registration
Statement;
(B) use its reasonable best efforts to
cause such Shelf Registration Statement to be
declared effective by the SEC as promptly as
practicable, but in no event later than the 210th
day after the Closing Time (or within 30 days of a
request of any Initial Purchaser); provided that,
with respect to Exchange Debentures received by a
broker-dealer in exchange for any securities that
were acquired by such broker-dealer as a result of
market-making or other trading activities, the
Company may, if permitted by current
interpretations by the staff of the SEC, file a
post-effective amendment to the Exchange Offer
Registration Statement containing the information
required by Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of its obligations under
paragraph (A) solely with respect to broker-
dealers who acquired their Securities as a result
of market-making or other trading activities, and
any such Exchange Offer Registration Statement, as
so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a
Shelf Registration Statement. In the event that
the Company is required to file a Shelf
Registration Statement upon the request of any
Holder (other than an Initial Purchaser) not
eligible to participate in the Exchange Offer
pursuant to clause (iii) above or upon the request
of any Initial Purchaser pursuant to clause (iv)
above, the Company shall file and use its
reasonable best efforts to have declared effective
by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to
all Registrable Debentures and a Shelf
Registration Statement (which may be a combined
Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and
sales of Registrable Debentures held by such
Holder or such Initial Purchaser, as applicable,
after completion of the Exchange Offer;
(C) use its reasonable best efforts to
keep the Shelf Registration Statement continuously
effective, supplemented and amended as required,
in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of
two years after its effective date or such shorter
period which will terminate when all of the
Registrable Debentures covered by the Shelf
Registration Statement (i) have been sold pursuant
to the Shelf Registration Statement, (ii) cease to
be outstanding or (iii) become eligible for resale
pursuant to Rule 144 under the 1934 Act without
volume restrictions; and
(D) notwithstanding any other
provisions hereof, use its best efforts to ensure
that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming a
part thereof and any supplement thereto complies
in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto
does not, when it becomes effective, 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 not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement,
and any supplement to such Prospectus (as amended
or supplemented from time to time), does not
include an untrue statement of a material fact or
omit to state a material fact necessary in order
to make the statements, in light of the
circumstances under which they were made, not
misleading; provided, however, clauses (ii) and
(iii) shall not apply to any information relating
to any Initial Purchaser or any Holder furnished
to the Company in writing by such Initial
Purchaser or Holder expressly for use in the Shelf
Registration Statement.
The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement if
reasonably requested by the Majority Holders with
respect to information relating to the Holders and
otherwise as required by Section 3(b) below, to
use its reasonable best efforts to cause any such amendment to
become effective and such Shelf Registration Statement
to become usable as soon as practicable thereafter and
to furnish to the Holders of Registrable Debentures
copies of any such supplement or amendment promptly
after its being used or filed with the SEC.
(c) Expenses. The Company shall pay
all Registration Expenses in connection with the
registration pursuant to Section 2(a) and 2(b)
and, in the case of any Shelf Registration
Statement, will reimburse the Holders or the
Initial Purchasers for the reasonable fees and
disbursements of one counsel (in addition to any
local counsel) designated in writing by the
Majority Holders to act as counsel for the Holders
of the Registrable Debentures in connection
therewith. Each Holder shall pay all expenses of
its counsel other than as set forth in the
preceding sentence, underwriting discounts and
commissions and transfer taxes, if any, relating
to the sale or disposition of such Holder's
Registrable Debentures pursuant to a Shelf
Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used
its reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to
become, or to remain, effective during the
requisite periods set forth herein if the Company
voluntarily takes any action that could reasonably
be expected to result in any such Registration
Statement not being declared effective or
remaining effective or in the Holders of
Registrable Debentures covered thereby not being
able to exchange or offer and sell such
Registrable Debentures during that period unless
(A) such action is required by applicable law or
(B) such action is taken by the Company in good
faith and for valid business reasons (but not
including avoidance of the Company's obligations
hereunder), including the acquisition or
divestiture of assets or a material corporate
transaction or event so long as the Company
promptly complies with the requirements of Section
3(k) hereof, if applicable.
(ii) An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a
Shelf Registration Statement pursuant to Section
2(b) hereof shall not be deemed to have become
effective unless it has been declared effective by
the SEC; provided, however, that if, after it has
been declared effective, the offering of
Registrable Debentures pursuant to a Registration
Statement is interfered with by any stop order,
injunction or other order or requirement of the
SEC or any other governmental agency or court,
such Registration Statement shall be deemed not to
have been effective during the period of such
interference, until the offering of Registrable
Debentures pursuant to such Registration Statement
may legally resume.
(iii) During any 365-day period, the
Company may suspend the availability of a Shelf
Registration Statement and the use of the related
Prospectus, as provided in Section 3(e)(vi) and
the last paragraph of Section 3 hereof, for up to
four periods of up to 45 consecutive days (except for the
consecutive 45-day period immediately
prior to maturity of the Debentures), but no more
than an aggregate 90 days during any 365-day
period, if any event shall occur (A) as set forth
in Section 2(d)(i) or (B) as a result of which it
shall be necessary, in the good faith
determination of the board of directors of the
Company, to amend the Shelf Registration Statement
or amend or supplement any prospectus or
prospectus supplement thereunder in order that
each such document not include any untrue
statement of fact or omit to state a material fact
necessary to make the statements therein not
misleading in light of the circumstances under
which they were made.
(e) Increase in Interest Rate. In the
event that (i) the Exchange Offer Registration
Statement is not filed with the SEC on or prior to
the 135th calendar day following the date hereof,
(ii) the Exchange Offer Registration Statement is
not declared effective on or prior to the 180th
calendar day following the date hereof, (iii) the
Exchange Offer is not consummated on or prior to
the 45th calendar day following the effective date
of the Exchange Offer Registration Statement, or
(iv) if required, a Shelf Registration Statement
with respect to the Registrable Debentures is not
declared effective on or prior to the 210th
calendar day following the date hereof, the per
annum interest rate borne by the Registrable
Debentures shall be increased by one-quarter of
one percent (0.25%) per annum following such 135-
day period in the case of clause (i) above,
following such 180-day period in the case of
clause (ii) above, following such 45-day period in
the case of clause (iii) above, or following such
210-day period in the case of (iv) above, which
rate will be increased by an additional quarter of
one percent (0.25%) per annum for each 90-day
period that any additional interest continues to
accrue; provided that the aggregate increase in
such annual interest rate may in no event exceed
one-half of one percent (0.50%) per annum. Upon
(w) the filing of the Exchange Offer Registration
Statement after the 135-day period described in
clause (i) above, (x) the effectiveness of the
Exchange Offer Registration Statement after the
180-day period described in clause (ii) above, (y)
the consummation of the Exchange Offer after the
45-day period described in clause (iii) above, or
(z) the effectiveness of a Shelf Registration
Statement, after the 210-day period described in
clause (iv) above, the interest rate borne by the
Debentures from the date of such filing,
effectiveness or consummation, as the case may be,
shall be reduced to the original interest rate if
the Company is otherwise in compliance with this
paragraph; provided, however, that, if after any
such reduction in interest rate, a different event
specified in clause (i), (ii), (iii) or (iv) above
occurs, the interest rate shall again be increased
pursuant to the foregoing provisions. No increase
in the rate under (i), (ii) or (iii) above shall
be payable for any period during which a Shelf
Registration is effective.
(f) Specific Enforcement. Without
limiting the remedies available to the Initial
Purchasers and the Holders, the Company
acknowledges that any failure by the Company to
comply with its obligations under Sections 2(a)
and 2(b) hereof may result in material irreparable
injury to the Initial
Purchasers or the Holders
for which there is no adequate remedy at law, that
it will not be possible to measure damages for
such injuries precisely and that, in the event of
any such failure, the Initial Purchasers or any
Holder may obtain such relief as may be required
to specifically enforce the Company's obligations
under Sections 2(a) and 2(b).
3. Registration Procedures. In connection
with the obligations of the Company with respect to the
Registration Statements pursuant to Sections 2(a) and
2(b) hereof, the Company shall:
(a) prepare and file with the SEC a
Registration Statement, within the time periods
specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the
Company, (ii) shall, in the case of a Shelf
Registration Statement, be available for the sale of
the Registrable Debentures by the selling Holders
thereof and (iii) shall comply as to form in all
material respects with the requirements of the
applicable form and include or incorporate by reference
all financial statements required by the SEC to be
filed therewith, and use its reasonable best efforts to
cause such Registration Statement to become effective
and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such
amendments and post-effective amendments to each
Registration Statement as may be necessary under
applicable law to keep such Registration Statement
effective for the applicable period; cause each
Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the 1933 Act; and
comply with the provisions of the 1933 Act with respect
to the disposition of all Debentures covered by each
Registration Statement during the applicable period in
accordance with the intended method or methods of
distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i)
notify each Holder of Registrable Debentures, at least
ten business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable
Debentures is being filed and advising such Holders
that the distribution of Registrable Debentures will be
made in accordance with the method elected by the
Majority Holders; (ii) furnish to each Holder of
Registrable Debentures, to counsel for the Initial
Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable
Debentures, if any, without charge, as many copies of
each Prospectus, including each preliminary Prospectus,
and any amendment or supplement thereto and such other
documents as such Holder or underwriter may reasonably
request, including financial statements and schedules
and, if the Holder so requests, all exhibits (including
those incorporated by reference) in order to facilitate
the public sale or other disposition of the Registrable
Debentures; and (iii) subject to the last paragraph of
this Section 3, hereby consent to the use of the
Prospectus, including each preliminary Prospectus, or
any amendment or supplement thereto by each of the
selling Holders of Registrable Debentures in connection
with the offering and sale of the Registrable
Debentures covered by the Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to
register or qualify the Registrable Debentures under
all applicable state securities or "blue sky" laws of
such jurisdictions as any Holder of Registrable
Debentures covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable
Debentures shall reasonably request by the time the
applicable Registration Statement is declared effective
by the SEC, to cooperate with the Holders in connection
with any filings required to be made with the NASD,
keep each such registration or qualification effective
during the period such Registration Statement is
required to be effective and do any and all other acts
and things which may be reasonably necessary or
advisable to enable such Holder to consummate the
disposition in each such jurisdiction of such
Registrable Debentures owned by such Holder; provided,
however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section
3(d) or (ii) take any action which would subject it to
general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration,
notify each Holder of Registrable Debentures and
counsel for such Holders promptly and, if requested by
such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any
request by the SEC or any state securities authority
for post-effective amendments and supplements to a
Registration Statement and Prospectus or for additional
information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any
state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv)
if, between the effective date of a Registration
Statement and the closing of any sale of Registrable
Debentures covered thereby, the representations and
warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar
agreement, if any, relating to such offering cease to
be true and correct in all material respects, (v) of
the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Registrable Debentures for sale in any jurisdiction or
the initiation or threatening of any proceeding for
such purpose, (vi) of the happening of any event or the
discovery of any facts during the period a Shelf
Registration Statement is effective (including as
contemplated in Section 2(d)(iii) hereof) which (A) is
contemplated in Section 2(d)(i) or (B) makes any
statement made in such Shelf Registration Statement or
the related Prospectus untrue in any material respect
or which requires the making of any changes in such
Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading and (vii) of
any determination by the Company that a post-effective
amendment to a Registration Statement would be
appropriate;
(f) (A) in the case of an Exchange Offer,
(i) include in the Exchange Offer Registration
Statement a "Plan of Distribution" section covering the
use of the Prospectus included in the Exchange Offer
Registration Statement by broker-dealers who
have exchanged their Registrable Debentures for Exchange
Debentures for the resale of such Exchange Debentures,
(ii) furnish to each broker-dealer who desires to
participate in the Exchange Offer, without charge, as
many copies of each Prospectus included in the Exchange
Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as
such broker-dealer may reasonably request, (iii)
include in the Exchange Offer Registration Statement a
statement that any broker-dealer who holds Registrable
Debentures acquired for its own account as a result of
market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives
Exchange Debentures for Registrable Debentures pursuant
to the Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such
Exchange Debentures, (iv) subject to the last paragraph
of this Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement
thereto, by any broker-dealer in connection with the
sale or transfer of the Exchange Debentures covered by
the Prospectus or any amendment or supplement thereto,
and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in
order to participate in the Exchange Offer the
following provision:
"If the undersigned is not a broker-dealer,
the undersigned represents that it is not engaged in,
and does not intend to engage in, a distribution of
Exchange Debentures. If the undersigned is a broker-
dealer that will receive Exchange Debentures for its
own account in exchange for Registrable Debentures, it
represents that the Registrable Debentures to be
exchanged for Exchange Debentures were acquired by it
as a result of market-making activities or other
trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange
Debentures pursuant to the Exchange Offer; however, by
so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act;"
(B) to the extent any Participating
Broker-Dealer participates in the Exchange Offer,
the Company shall use its best efforts to cause to
be delivered at the request of an entity
representing the Participating Broker-Dealers
(which entity shall be Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, unless it elects not
to act as such representative) any "cold comfort"
letters with respect to the Prospectus in the form
existing on the last date for which exchanges are
accepted pursuant to the Exchange Offer and with
respect to each subsequent amendment or
supplement, if any, effected during the period
specified in clause (C) below;
(C) to the extent any Participating
Broker-Dealer participates in the Exchange Offer,
the Company shall use its reasonable best efforts
to maintain the effectiveness of the Exchange
Offer Registration Statement for a period of 180
days following the closing of the Exchange Offer
or such shorter period which will terminate when
the Participating Broker-Dealers have completed
all resales
subject to applicable prospectus delivery requirements; and
(D) the Company shall not be required
to amend or supplement the Prospectus contained in
the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) hereof,
or take any other action as a result of this
Section 3(f), for a period exceeding 180 days
after the last date for which exchanges are
accepted pursuant to the Exchange Offer (as such
period may be extended by the Company) and
Participating Broker-Dealers shall not be
authorized by the Company to, and shall not,
deliver such Prospectus after such period in
connection with resales contemplated by this
Section 3;
(g) (i) in the case of an Exchange Offer,
furnish counsel for the Initial Purchasers and (ii) in
the case of a Shelf Registration, furnish counsel for
the Holders of Registrable Debentures copies of any
request by the SEC or any state securities authority
for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain
the withdrawal of any order suspending the
effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder
of the withdrawal of any such order;
(i) in the case of a Shelf Registration,
furnish to each Holder of Registrable Debentures,
without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(j) in the case of a Shelf Registration,
cooperate with the selling Holders of Registrable
Debentures to facilitate the timely preparation and
delivery of certificates representing Registrable
Debentures to be sold and not bearing any restrictive
legends; and cause such Registrable Debentures to be in
such denominations (consistent with the provisions of
the Indenture) in a form eligible for deposit with the
Depositary and registered in such names as the selling
Holders or the underwriters, if any, may reasonably
request in writing at least one business day prior to
the closing of any sale of Registrable Debentures;
(k) in the case of a Shelf Registration,
upon the occurrence of any event or the discovery of
any facts, each as contemplated by Section 3(e)(vi)
hereof, use its best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated
therein by reference or file any other required
document so that, as thereafter delivered to the
purchasers of the Registrable Debentures, such
Prospectus will not contain at the time of such
delivery any untrue statement of a material fact or
omit to state a material fact necessary to make the
statements therein, in light of the circumstances under
which they were made, not misleading. The Company
agrees to notify each Holder to suspend use of the
Prospectus as promptly as practicable after the
occurrence of such an event, and each Holder hereby
agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to
correct such misstatement or omission. At such time as
such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in
each case to correct any misstatement of a material
fact or to include any omitted material fact, the
Company agrees promptly to notify each Holder of such
determination and to furnish each Holder such numbers
of copies of the Prospectus, as amended or
supplemented, as such Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange
Debentures, or Registrable Debentures, as the case may
be, not later than the effective date of a Registration
Statement, and provide the Trustee with printed
certificates for the Exchange Debentures or Registrable
Debentures, as the case may be, in a form eligible for
deposit with the Depositary;
(m) (i) cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended (the
"TIA"), in connection with the registration of the
Exchange Debentures, or Registrable Debentures, as the
case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may
be required for the Indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute,
and use its reasonable best efforts to cause the
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 the
Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration,
enter into agreements (including underwriting
agreements) and take all other customary and
appropriate actions (including those reasonably
requested by the holders of a majority in principal
amount of the Registrable Debentures being sold) in
order to expedite or facilitate the disposition of such
Registrable Debentures and in such connection, whether
or not an underwriting agreement is entered into and
whether or not the registration is an underwritten
registration, in a manner that is reasonable and
customary:
(i) make such representations and
warranties to the Holders of such Registrable
Debentures and the underwriters, if any, in form,
substance and scope as are customarily made by
issuers to underwriters in similar underwritten
offerings as may be reasonably requested by such
Holders and underwriters;
(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 principal amount of the Registrable
Debentures being sold) addressed to each selling
Holder and the underwriters, if any, covering the
matters customarily covered in opinions requested
in sales of securities or underwritten offerings
and such other matters as may be reasonably
requested by such Holders and underwriters;
(iii) obtain "cold comfort" letters
and updates thereof from the Company's independent
certified public accountants addressed to the
underwriters, if any, and will use best efforts to
have such letters addressed to the selling Holders
of Registrable Debentures, such letters to be in
customary form and covering matters of the type
customarily covered in "cold comfort" letters to
underwriters in connection with similar
underwritten offerings;
(iv) enter into a securities sales
agreement with the Holders and an agent of the
Holders providing for, among other things, the
appointment of such agent for the selling Holders
for the purpose of soliciting purchases of
Registrable Debentures, which agreement shall be
in form, substance and scope customary for similar
offerings;
(v) if an underwriting agreement is
entered into in the case of an underwritten
offering, cause the same to set forth
indemnification provisions and procedures
substantially equivalent to the indemnification
provisions and procedures set forth in Section 5
hereof with respect to the underwriters and all
other parties to be indemnified pursuant to
Section 5 hereof; and
(vi) deliver such documents and
certificates as may be reasonably requested and as
are customarily delivered in similar offerings.
The above shall be done at (i) the
effectiveness of such Registration Statement (and, if
appropriate, each post-effective amendment thereto) and
(ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder. In
the case of any underwritten offering, the Company
shall provide written notice to the Holders of all
Registrable Debentures of such underwritten offering at
least thirty days prior to the filing of a prospectus
supplement for such underwritten offering. Such notice
shall (x) offer each such Holder the right to
participate in such underwritten offering, (y) specify
a date, which shall be no earlier than ten days
following the date of such notice, by which such Holder
must inform the Company of its intent to participate in
such underwritten offering and (z) include the
instructions such Holder must follow in order to
participate in such underwritten offering;
(o) in the case of a Shelf Registration,
make available for inspection by representatives of the
Holders of the Registrable Debentures and any
underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any U.S. counsel
or accountant retained by such Holders or underwriters,
all financial and other records, pertinent corporate
documents and properties of the Company reasonably
requested by any such Persons, and cause the respective
officers, directors, employees, and any other agents of
the Company to supply all information reasonably
requested by any such representative, underwriter,
special counsel or accountant in connection with a
Registration Statement; provided, that any such
records, documents, properties and such information
that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such
records, documents, properties or information shall be kept
confidential by any such representative,
underwriter, counsel or accountant and shall be used
only in connection with such Shelf Registration
Statement, unless such information has become available
(not in violation of this Agreement) to the public
generally or through a third party without an
accompanying obligation of confidentiality, and except
that such representative, underwriter, counsel or
accountant shall have no liability, and shall not be in
breach of this provision, if disclosure of such
confidential information is made in connection with a
court proceeding or required by law, and the Company
shall be entitled to request that such representative,
underwriter, counsel or accountant sign a
confidentiality agreement to the foregoing effect.
Each such person will be required to agree that
information obtained by it as a result of such
inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions
in the securities of the Company unless and until such
is made generally available to the public through no
fault or action of such person. Each selling Holder of
such Registrable Debentures will be required to further
agree that it will, upon learning that disclosure of
confidential information is necessary, give notice to
the Company to allow the Company at its expense to
undertake appropriate action to prevent disclosure of
the confidential information;
(p) (i) in the case of an Exchange Offer, a
reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a
part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a
Prospectus, provide copies of such document to the
Initial Purchasers, and make such changes in any such
document prior to the filing thereof as the Initial
Purchasers or their counsel may reasonably request;
(ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Shelf Registration Statement,
any Prospectus forming a part thereof, any amendment to
such Shelf Registration Statement or amendment or
supplement to such Prospectus, provide copies of such
document to the Holders of Registrable Debentures, to
the Initial Purchasers, to counsel on behalf of the
Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Debentures, if
any, and make such changes in any such document prior
to the filing thereof as counsel to the Initial
Purchasers or any underwriter may reasonably request;
and (iii) cause the representatives of the Company to
be available for discussion of such document as shall
be reasonably requested by the Holders of Registrable
Debentures, the Initial Purchasers on behalf of such
Holders or any underwriter, and shall not at any time
make any filing of any such document of which such
Holders, the Initial Purchasers on behalf of such
Holders, their counsel or any underwriter shall not
have previously been advised and furnished a copy or to
which such Holders, the Initial Purchasers on behalf of
such Holders, their counsel or any underwriter shall
reasonably object within a reasonable time period;
(q) in the case of a Shelf Registration, use
its reasonable best efforts to cause all Registrable
Debentures to be listed on any securities exchange on
which similar debt securities issued by the Company are
then listed if requested by the Majority Holders or by
the underwriter or underwriters of an underwritten
offering of Registrable Debentures, if any;
(r) in the case of a Shelf Registration, use
its reasonable best efforts to cause the Registrable
Debentures to be rated with the appropriate rating
agencies, if so requested by the holders of a majority
in principal amount of Registrable Debentures or by the
underwriter or underwriters of an underwritten
offering, unless the Registrable Debentures are already
so rated;
(s) otherwise use its reasonable best
efforts to comply with all applicable rules and
regulations of the SEC and make available to its
security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve months
which shall satisfy the provisions of Section 11(a) of
the 1933 Act and Rule 158 thereunder; and
(t) cooperate and assist in any filings
required to be made with the NASD and in the
performance of any due diligence investigation by any
underwriter and its counsel.
In the case of a Shelf Registration
Statement, the Company may (as a documents required
undcondition to such Holder's participation in the
Shelf Registration) require each Holder of Registrable
Debentures to furnish to the Company such information
regarding such Holder and the proposed distribution by
such Holder of such Registrable Debentures as the
Company may from time to time reasonably request and
agree in writing to be bound by the Agreement,
including the indemnification provisions.
In the case of a Shelf Registration
Statement, each Holder agrees that, upon receipt of any
notice from the Company of the happening of any event
or the discovery of any facts, each of the kind
described in Sections 2(d)(i) and 3(e)(ii)-(vii)
hereof, such Holder will forthwith discontinue
disposition of Registrable Debentures pursuant to a
Registration Statement until such Holder's receipt of
(i) the copies of the supplemented or amended
Prospectus contemplated by Section 3(k) hereof or (ii)
written notice from the Company that the Shelf
Registration Statement is once again effective and that
no supplement or amendment is required. If so directed
by the Company, such Holder will deliver to the Company
(at the Company's expense) all copies in its
possession, other than permanent file copies then in
such Holder's possession, of the Prospectus covering
such Registrable Debentures current at the time of
receipt of such notice.
If the Company shall give any such notice to
suspend the disposition of Registrable Debentures
pursuant to a Shelf Registration Statement as a result
of the happening of any event or the discovery of any
facts, each of the kind described in Sections 2(d)(i)
and 3(e)(vi) hereof, the Company shall be deemed to
have used its reasonable best efforts to keep the Shelf
Registration Statement effective during such period of
suspension; provided that (i) such period of suspension
shall not exceed the time periods provided in Section
2(d)(iii) hereof and (ii) the Company shall, if
necessary, use its reasonable best efforts to file and
have declared effective (if an amendment) as
soon as practicable an amendment or supplement to the Shelf
Registration Statement and shall extend the period
during which the Registration Statement shall be
maintained effective pursuant to this Agreement by the
number of days during the period from and including the
date of the giving of such notice to and including the
date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume
such dispositions.
4. Underwritten Registrations. If any of
the Registrable Debentures 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 Majority Holders of such
Registrable Debentures included in such offering and
shall be reasonably acceptable to the Company.
No Holder of Registrable Debentures may
participate in any underwritten registration hereunder
unless such Holder (a) agrees to sell such Holder's
Registrable Debentures 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, indemnities, underwriting agreements and
other er the terms of such underwriting arrangements.
5. Indemnification and Contribution. (a)
The Company agrees to indemnify and hold harmless each
Initial Purchaser, each Holder, including Participating
Broker-Dealers, each underwriter who participates in an
offering of Registrable Debentures, their respective
affiliates, and their respective directors, officers,
employees, agents, and each Person, if any, who
controls any Initial Purchaser or any Holder within the
meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act, from and against any and all
losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses
reasonably incurred by the Initial Purchaser, any
Holder or any such controlling or affiliated Person in
connection with defending or investigating any such
action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained
in any Registration Statement or any amendment thereof,
pursuant to which Exchange Debentures or Registrable
Debentures were registered under the 1933 Act,
including all documents incorporated therein by
reference, or caused by any omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, or caused by any untrue
statement or alleged untrue statement of a material
fact contained in any Prospectus (as amended or
supplemented if the Company shall have furnished any
amendments or supplements thereto), or caused by any
omission or alleged omission to state therein a
material fact necessary to make the statements therein
in light of the circumstances under which they were
made not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue
statement or omission based upon information relating
to any Initial Purchaser or any Holder furnished to the
Company in writing by such Initial Purchaser through
you or by or relating to any Holder or underwriter who
participates in an offering of Registrable Debentures,
in each case expressly for use therein.
(b) Each Holder agrees, severally and not
jointly, to indemnify and hold harmless the Company,
each Initial Purchaser, each underwriter who
participates in an offering of Registrable Debentures,
and the other selling Holders, and each of their
respective directors and officers (including each
director and officer of the Company who signed the
Registration Statement) and each person, if any, who
controls the Company, any Initial Purchaser, any
underwriter or any other selling Holder within the
meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act from and against any and all losses,
claims, damages and liabilities (including, without
limitation, any legal or other expenses described in
the indemnity contained in Section 5(a), as incurred,
but only with reference to information relating to such
Holder furnished to the Company in writing by such
Holder expressly for use in any Registration Statement
or any amendment thereof or any Prospectus or any
amendments or supplements thereto.
(c) In case any proceeding (including any
governmental investigation) shall be instituted
involving any Person in respect of which indemnity may
be sought pursuant to either paragraph (a) or paragraph
(b) above, such Person (the "indemnified party") shall
promptly notify the person against whom such indemnity
may be sought (the "indemnifying party") in writing
(but the failure to so notify the indemnifying party
will not relieve it from any liability which it may
have to any indemnified party otherwise than under this
Section 5) and the indemnifying party, upon request of
the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party
may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding
(including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel
would be inappropriate due to actual or potential
differing interests between them. It is understood
that the indemnifying party shall not, in respect of
the legal expenses of any indemnified party in
connection with any proceeding or related proceedings
in the same jurisdiction, be liable for (a) the fees
and expenses of more than one separate firm (in
addition to any local counsel) for the Initial
Purchasers and all Persons, if any, who control any
Initial Purchaser within the meaning of either Section
15 of the 1933 Act or Xxxxxxx 00 xx xxx 0000 Xxx, (x)
the fees and expenses of more than one separate firm
(in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration
Statement and each Person, if any, who controls the
Company within the meaning of either such Section and
(c) the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Holders
and all Persons, if any, who control any Holders within
the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are
incurred. In the case of any such separate firm for
the Initial Purchasers and such control Persons of
Initial Purchasers, such firm shall be designated in
writing by Xxxxxxx Xxxxx. In the case of any such
separate firm for the
Holders and such Persons who
control Holders, such firm shall be designated in
writing by the Majority Holders. In all other cases,
such firm shall be designated in writing by the
Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without
its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason
of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse
the indemnified party for fees and expenses of counsel
as contemplated by the second and third sentences of
this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding
effected without its written consent if (i) such
settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No
indemnifying party shall, without the prior written
consent of the indemnified party, which consent shall
not be unreasonably withheld, effect any settlement of
any pending or threatened proceeding in respect of
which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement (i)
includes an unconditional release of such indemnified
party from all liability on claims that are the subject
matter of such proceeding and (ii) does not include a
statement as to an admission of fault, culpability or
failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in
paragraph (a) or paragraph (b) of this Section 5 is
unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under
such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on
the one hand and of the indemnified party or parties on
the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable
considerations. The relative fault of such
indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand shall be
determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a
material fact relates to information supplied by such
indemnifying party or parties or such indemnified party
or parties, and the parties' relative intent,
knowledge, access to information and opportunity to
correct or prevent such statement or omission. The
Company, Initial Purchasers, and the Holders of
Registrable Debentures respective obligations to
contribute pursuant to this Section 5 are several in
proportion to the respective number of Debentures they
have purchased hereunder, and not joint.
(e) The Company, the Initial Purchasers, and
each Holder of Registrable Debentures agree that it
would not be just or equitable if contribution
pursuant to this Section 5 were determined by pro rata
allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method
of allocation that does not take account of the
equitable considerations referred to in paragraph (d)
above. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred
by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5, no
Holder shall be required to indemnify or contribute any
amount in excess of the amount by which the total price
at which Registrable Debentures were sold by such
Holder exceeds the amount of any 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 0000 Xxx) shall be entitled to contribution from
any Person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 5,
each Person, if any, who controls an Initial Purchaser
or Holder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same
rights to contribution as such Initial Purchaser or
Holder, and each director of the Company, each officer
of the Company who signed the Registration Statement,
and each Person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights
to contribution as the Company. The remedies provided
for in this Section 5 are not exclusive and shall not
limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions
contained in this Section 5 shall remain operative and
in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation
made by or on behalf of any Initial Purchaser or any
Holder, or any Person controlling any Initial Purchaser
or any Holder, or by or on behalf of the Company, its
officers or directors or any Person controlling the
Company, (iii) acceptance of any of the Exchange
Debentures and (iv) any sale of Registrable Debentures
pursuant to a Shelf Registration Statement.
6. Miscellaneous. (a) Rule 144 and Rule
144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934
Act, the Company covenants that it will file the
reports required to be filed by it under Section 13(a)
or 15(d) of the 1934 Act and the rules and regulations
adopted by the SEC thereunder, that if it ceases to be
so required to file such reports, it will upon the
request of any Holder of Registrable Debentures (i)
make publicly available or cause to be made publicly
available such information as is necessary to permit
sales pursuant to Rule 144 under the 1933 Act, (ii)
deliver or cause to be delivered such information to a
prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will
take such further action as any Holder of Registrable
Debentures may reasonably request, and (iii) take such
further action that is reasonable in the circumstances,
in each case, to the extent required from time to time
to enable such Holder to sell its Registrable
Debentures without registration under the 1933 Act
within the limitation of the
exemptions provided by (x)
Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (y) Rule 144A under the 1933
Act, as such Rule may be amended from time to time, or
(z) any similar rules or regulations hereafter adopted
by the SEC. Upon the written request of any Holder of
Registrable Debentures, the Company will deliver to
such Holder a written statement as to whether it has
complied with such requirements.
(b) No Inconsistent Agreements. The Company
has not entered into nor will the Company on or after
the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the
Holders of Registrable Debentures in this Agreement or
otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any
way conflict with and are not inconsistent with the
rights granted to the holders of the Company's other
issued and outstanding securities under any such
agreements.
(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 in aggregate principal amount of the
outstanding Registrable Debentures affected by such
amendment, modification, supplement, waiver or
departure.
(d) Notices. All notices and other
communications provided for or permitted hereunder
shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier
guaranteeing overnight delivery (i) if to a Holder
(other than an Initial Purchaser), at the most current
address set forth on the records of the Registrar under
the Indenture, (ii) if to an Initial Purchaser, at the
most current address given by such Initial Purchaser to
the Company by means of a notice given in accordance
with the provisions of this Section 6(d), which address
initially is the address set forth in the Purchase
Agreement; and (iii) if to the Company, initially at
the address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is
given in accordance with the provisions of this Section
6(d).
All such notices and communications shall be
deemed to have been duly given: at the time delivered
by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if
mailed; when receipt is acknowledged, if telecopied;
and on the next business day if timely delivered to an
air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the
Person giving the same to the Trustee, at the address
specified in the Indenture.
(e) Successors and Assigns. This Agreement
shall inure to the benefit of and be binding upon the
successors, assigns and transferees of each of the
parties, 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 Debentures in violation of the terms hereof
or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable
Debentures, in any manner, whether by operation of law
or otherwise, such Registrable Debentures shall be held
subject to all of the terms of this Agreement, and by
taking and holding such Registrable Debentures, 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) Third Party Beneficiary. The Holders
shall be third party beneficiaries to the agreements
made hereunder between the Company on the one hand, and
the Initial Purchasers, on the other hand, and shall
have the right to enforce such agreements directly to
the extent it deems such enforcement necessary or
advisable to protect its rights or the rights of
Holders hereunder.
(g) 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.
(h) Headings. The headings in this
Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one
or more of the provisions contained herein, or the
application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity,
legality and enforceability of any such provision in
every other respect and of the remaining provisions
contained herein shall not be affected or impaired
thereby.
IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first written
above.
XXXX'X CORPORATION
By: /s/ R. Xxxxxxxx Xxxxxxxxxx
------------------------------
Name: R.Xxxxxxxx Xxxxxxxxxx
Title: Vice Chairman of the Board and
Chief Executive Officer
Confirmed and Accepted,
as of the date first above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
XXXXXX XXXXXXX & CO. INCORPORATED
BNY CAPITAL MARKETS, INC.
BANC ONE CAPITAL MARKETS, INC.
By: XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxxx Xxxxx
--------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
