EXHIBIT 4.3
Exchange and Registration Rights Agreement
Conformed Copy
▇▇▇▇▇▇ Griesheim Holding AG
E550,000,000 10.375% Senior Notes due 2011
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
May 16, 2001
▇▇▇▇▇▇▇ Sachs International,
As representative of the several Purchasers
named in Schedule I to the Purchase Agreement
c/o Goldman ▇▇▇▇▇ International
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Ladies and Gentlemen:
▇▇▇▇▇▇ Griesheirn Holding AG, a stock corporation incorporated under
the laws of the Federal Republic of Germany (the "Company"), proposes to issue
and sell to the Purchasers (as defined herein) upon the terms set forth in the
Purchase Agreement (as defined herein) E550,000,000 principal amount of its
10.375% Senior Notes due 2011. As an inducement to the Purchasers to enter into
the Purchase Agreement and in satisfaction of a condition to the obligations of
the Purchasers thereunder, the Company agrees with the Purchasers for the
benefit of holders (as defined herein) from time to time of the Registrable
Securities (as defined herein) as follows:
1. Certain Definitions.
For purposes of this Exchange and Registration Rights Agreement, the
following terms shall have the following respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the Exchange
Act or the Securities Act, whichever is the relevant statute for the particular
purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective, (ii) a Shelf
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Registration, shall mean the time and date as of which the Commission declares
the Shelf Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective and (iii) a Market Making Shelf, shall
mean the time and date as of which the Commission declares the Market Making
Shelf Registration Statement effective or as of which the Market Making Shelf
Registration Statement otherwise becomes effective.
"Electing Holder" shall mean any holder of Registrable Securities that
has returned a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(ii) or 3(d)(iii) hereof.
"Exchange Act" shall mean the U.S. Securities Exchange Act of 1934, or
any successor thereto, as the same shall be amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean each of the Purchasers and other persons
who acquire Registrable Securities from time to time (including any successors
or assigns), in each case for so long as such person owns any Registrable
Securities.
"Indenture" shall mean the Indenture, dated on or about May 16, 2001,
between the Company and The Bank of New York, as Trustee, as the same shall be
amended from time to time.
"Interest Payment Date" shall have the meaning assigned thereto in the
Indenture.
"Market Maker" shall mean ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇▇, Sachs
& Co. or any of their affiliates (other than the Company and its subsidiaries)
involved in market making activities with respect to the Securities or Exchange
Securities.
"Market Making Shelf" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Market Making Shelf Registration Statement" shall have the meaning
assigned thereto in Section 2(c) hereof.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
The term "person" shall mean a corporation, association, partnership,
organization, business, individual, government or political subdivision thereof
or governmental agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated as of
May 16, 2001, between the Purchasers and the Company relating to the Securities.
"Purchasers" shall mean the Purchasers named in Schedule I to the
Purchase Agreement.
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"Registrable Securities" shall mean the Securities; provided, however,
that a Security shall cease to be a Registrable Security when (i) in the
circumstances contemplated by Section 2(a) hereof, the Security has been
exchanged for an Exchange Security in an Exchange Offer, provided that prior to
the completion of the Exchange Offer, existing Commission interpretations have
not changed such that the Exchange Securities received by holders in the
Exchange Offer would not be transferable by such holders (other than Restricted
Holders) without restriction under the Securities Act (provided further that any
Exchange Security that, pursuant to the last two sentences of Section 2(a), is
included in a prospectus for use in connection with resales by broker-dealers
shall be deemed to be a Registrable Security with respect to Sections 5, 6, 8
and 9 until resale of such Registrable Security has been effected within the
180-day period referred to in Section 2(a)); (ii) in the circumstances
contemplated by Section 2(b) hereof, a Shelf Registration Statement registering
such Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder thereof
pursuant to and in a manner contemplated by such effective Shelf Registration
Statement; (iii) such Security is sold pursuant to Rule 144 under circumstances
in which any legend borne by such Security relating to restrictions on
transferability thereof, under the Securities Act or otherwise, is removed by
the Company or pursuant to the Indenture; (iv) such Security is eligible to be
sold pursuant to paragraph (k) of Rule 144; or (v) such Security shall cease to
be outstanding (as defined in the Indenture); provided further that for purposes
of clauses 3(d), 4, 5, 6, 8 and 9 hereof, Securities and Exchange Securities,
insofar as they relate to the market making activities of the Market Maker,
shall be deemed to be Registrable Securities.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section 2(a)
hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of the
Company within the meaning of Rule 405, (ii) a holder who acquires Exchange
Securities outside the ordinary course of such holder's business, (iii) a holder
who has arrangements or understandings with any person to participate in the
Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities
received by such broker-dealer pursuant to an Exchange Offer in exchange for
Registrable Securities acquired by the broker-dealer directly from the Company.
"Rule 144", "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as the
same shall be amended from time to time.
"Securities" shall mean the 10.375% Senior Notes due 2011 of the
Company to be issued and sold to the Purchasers.
"Securities Act" shall mean the U.S. Securities Act of 1933, or any
successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned thereto
in Section 2(b) hereof.
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"Special Interest" shall have the meaning assigned thereto in Section
2(c) hereof.
"Trust Indenture Act" shall mean the U.S. Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
References to the "United States" or the "U.S." are references to the
United States of America.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to
use its best efforts to file under the Securities Act or confidentially submit
to the Commission, as soon as practicable, but no later than 90 days after the
Closing Date, a registration statement relating to an offer to exchange (such
registration statement, the "Exchange Registration Statement", and such offer,
the "Exchange Offer") any and all of the Securities for a like aggregate
principal amount of debt securities issued by the Company, which debt securities
are substantially identical to the Securities (and are entitled to the benefits
of a trust indenture which is substantially identical to the Indenture or is the
Indenture and which has been qualified under the Trust Indenture Act), except
that they have been registered pursuant to an effective registration statement
under the Securities Act and do not contain provisions for the additional
interest contemplated in Section 2(c) below (such new debt securities
hereinafter called "Exchange Securities"). The Company agrees to use its best
efforts to cause the Exchange Registration Statement to become effective under
the Securities Act as soon as practicable, but no later than 180 days after the
Closing Date. The Exchange Offer will be registered under the Securities Act on
the appropriate form and will comply with all applicable tender offer rules and
regulations under the Exchange Act. The Company further agrees to use its best
efforts to commence and complete the Exchange Offer promptly, but no later than
45 days after such registration statement has become effective, hold the
Exchange Offer open for at least 30 days (or longer if required by applicable
law) and exchange Exchange Securities for all Registrable Securities that have
been validly tendered and not withdrawn on or prior to the date of expiration of
the Exchange Offer, in accordance with the terms of the Exchange Offer. The
Exchange Offer will be deemed to have been "completed" only if the debt
securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and the Exchange Act and
without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Company having exchanged the Exchange Securities for all outstanding
Registrable Securities pursuant to the Exchange Offer and (ii) the Company
having exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Registrable Securities that have been properly tendered and not withdrawn on or
prior to the date of expiration of the Exchange Offer, which shall be on a date
that is at least 30 days following the commencement of the Exchange Offer. The
Company agrees (x) to include in the Exchange Registration Statement a
prospectus for use in any
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resales by any holder of Exchange Securities that is a broker-dealer and (y) to
keep such Exchange Registration Statement effective for a period (the "Resale
Period") beginning when Exchange Securities are first issued in the Exchange
Offer and ending upon the earlier of the expiration of the 180th day after the
Exchange Offer has been completed or such time as such broker-dealers no longer
own any Registrable Securities. With respect to such Exchange Registration
Statement, such holders shall have the benefit of the rights of indemnification
and contribution set forth in Sections 6(a), (c), (d) and (e) hereof.
(b) If (i) on or prior to the time the Exchange Offer is completed
existing Commission interpretations are changed such that the debt securities
received by holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are not or would not be, upon receipt, transferable by
each such holder without restriction under the Securities Act, (ii) the Exchange
Offer has not been completed within 225 days following the Closing Date or (iii)
the Exchange Offer is not available to any holder of the Securities, the Company
shall, in lieu of (or, in the case of clause (iii), in addition to) conducting
the Exchange Offer contemplated by Section 2(a), file under the Securities Act
as soon as practicable, but no later than the later of 60 days after the time
such obligation to file arises, a "shelf" registration statement providing for
the registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 or any
similar rule that may be adopted by the Commission (such filing, the "Shelf
Registration" and such registration statement, the "Shelf Registration
Statement"). The Company agrees to use its best efforts (x) to cause the Shelf
Registration Statement to become or be declared effective no later than 120 days
after such Shelf Registration Statement is filed and to keep such Shelf
Registration Statement continuously effective for a period ending on the earlier
of the second anniversary of the Effective Time or such time as there are no
longer any Registrable Securities outstanding, provided, however, that no holder
shall be entitled to be named as a selling securityholder in the Shelf
Registration Statement or to use the prospectus forming a part thereof for
resales of Registrable Securities unless such holder is an Electing Holder, and
(y) after the Effective Time of the Shelf Registration Statement, promptly upon
the request of any holder of Registrable Securities that is not then an Electing
Holder, to take any action reasonably necessary to enable such holder to use the
prospectus forming a part thereof for resales of Registrable Securities,
including, without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement, provided, however,
that nothing in this Clause (y) shall relieve any such holder of the obligation
to return a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(d)(iii) hereof. The Company further agrees to
supplement or make amendments to the Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf
registration, and the Company agrees to furnish to each Electing Holder copies
of any such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
(c) The Company shall file under the Securities Act, on the date that
the Exchange Registration Statement (or in lieu thereof, the Shelf Registration
Statement) becomes or is declared effective, a "shelf" registration statement
(which may be the Exchange Registration Statement or the Shelf Registration
Statement if permitted by the rules and regulations of the Commission) in a form
approved by the Market Maker, pursuant to Rule 415 under the Securities Act or
any similar rule that may be adopted by the Commission providing for the
registration of, and the sale on a continuous or delayed basis in secondary
transactions by the Market Maker of, the Securities (in the event of a Shelf
Registration) or Exchange Securities (in the event of an Exchange Offer) (such
filing, the "Market Making Shelf", and such registration
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statement, the "Market Making Shelf Registration Statement"). The Company agrees
to use its best endeavors to cause the Market Making Shelf Registration
Statement to become or be declared effective on or prior to (i) the date the
Exchange Offer is completed pursuant to clause 2(a) above or (ii) the date the
Shelf Registration becomes or is declared effective pursuant to clause 2(b)
above, and to keep such Market Making Shelf continuously effective for so long
as the Market Maker may be required to deliver a prospectus in connection with
secondary transactions in the Securities or the Exchange Securities. In the
event that the Market Maker holds Securities at the time of the Exchange Offer,
the Company agrees that the Market Making Shelf shall provide for the resale by
the Market Maker of such Securities and shall be kept continuously effective
until the Market Maker determines in its judgement that they are no longer
required to deliver a prospectus in connection with the sale of such Securities.
The Company further agrees to supplement or make amendments to the Market Making
Shelf, as and when required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Market Making Shelf or by
the Securities Act or rules and regulations thereunder for shelf registration,
and the Company agrees to furnish to the Market Maker copies of any such
supplement or amendment prior to its being used or promptly following its filing
with the Commission.
Notwithstanding the foregoing, the Company may suspend the offering and
sale under the Market Making Shelf Registration Statement for a period or
periods the Board of Directors of the Company reasonably determines to be
necessary, but in any event not to exceed 90 days, in aggregate, in each year
during which the Market Making Shelf Registration Statement is required to be
effective and usable hereunder (measured from the Effective Time of the Market
Making Shelf Registration Statement to successive anniversaries thereof), if
(A)(i) the Company shall be engaged in a material acquisition, disposition or
other transaction or corporate development and (ii)(x) such transaction is
required by the Securities Act or rules and regulations thereunder to be
disclosed in the Market Making Shelf, the related prospectus or any amendment or
supplement thereto, or the failure by the Company to disclose such transaction
in the Market Making Shelf Registration Statement or related prospectus, or any
amendment or supplement thereto, as then amended or supplemented, would cause
the Market Making Shelf Registration Statement, prospectus or amendment or
supplement thereto, to contain an untrue statement of material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading, in light of the circumstances under which they were made, (y) the
Board of Directors of the Company determines in good faith that disclosure of
such transaction would not be in the best interest of the Company or would have
a material adverse effect on the consummation of such transaction, and (B) the
Company notifies the Market Maker within five days after such Board of Directors
makes the relevant determination set forth in sub-clause (A) of this clause
2(d).
(d) In the event that (i) the Company has not filed or submitted on a
confidential basis with the Commission the Exchange Registration Statement or
Shelf Registration Statement, if applicable, on or before the date on which such
registration statement is required to be filed pursuant to Section 2(a)or
Section 2(b), respectively, or (ii) such Exchange Registration Statement or
Shelf Registration Statement has not become effective or been declared effective
by the Commission on or before the date on which such registration statement is
required to become or be declared effective pursuant to Section 2(a) or Section
2(b), respectively, or (iii) the Exchange Offer has not been completed within 45
days after the initial effective date of the Exchange Registration Statement
relating to the Exchange Offer (if the Exchange Offer is then required to be
made) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or Section 2(b) hereof is filed and declared
effective but shall thereafter either be withdrawn by the Company or shall
become
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subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement
(except as specifically permitted herein) without being succeeded immediately by
an additional registration statement filed and declared effective (each such
event referred to in clauses (i) through (iv), a "Registration Default" and each
period during which a Registration Default has occurred and is continuing, a
"Registration Default Period"), then, as liquidated damages for such
Registration Default, subject to the provisions of Section 9(b), special
interest ("Special Interest"), in addition to the Base Interest, shall accrue at
a per annum rate of 0.50% for the first 90 days of the Registration Default
Period, increasing at a per annum rate of 0.50% for each subsequent 90 days of
the Registration Default Period, to a maximum per annum rate of 1.0% thereafter
for the remaining portion of the Registration Default Period; provided that
Special Interest may not accrue in respect of more than one Registration Default
at any one time. All accrued Special Interest will be paid by the Issuer on each
Interest Payment Date in accordance with the Indenture. Special Interest, if
any, will be computed on the basis of a 360-day year of twelve 30-day months.
Following the cure of all Registration Defaults, the accrual of Special Interest
will cease.
(e) The Company shall also furnish or cause to be furnished to the
Market Maker as many copies of the prospectus as it shall reasonably request
each time a prospectus (which may be required to be delivered by the Market
Maker in conjunction with any secondary transactions) is amended, supplemented
or supplanted by documents of the type specified in clause 3(d)(xvii)(B) to (D),
in each case in form and substance satisfactory to the Market Maker, provided
however, that to the extent the prospectus is being amended or supplemented
solely for the inclusion or incorporation by reference of quarterly financial
information, the opinions set forth in Clause 3(d)(xvii)(B) shall not be
required and the Company's independent accountants may limit the scope of the
comfort letter required by Clause 3(d)(xvii)(C) to such quarterly financial
statements.
(f) The Company shall take all actions necessary or advisable to be
taken by it to ensure that the transactions contemplated herein are effected as
so contemplated.
(g) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein to
any post-effective amendment to a registration statement as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated,
therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a),
Section 2(b) or Section 2(c), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer, the Shelf
Registration or the Market Making Shelf, as the case may be, the Company shall
qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
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(c) In connection with the Company's obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the
"Exchange Registration"), if applicable, the Company shall, as soon as
practicable (or as otherwise specified):
(i) prepare and file with or confidentially submit to the
Commission, as soon as practicable but no later than 90 days after the
Closing Date, an Exchange Registration Statement on any form which may
be utilized by the Company and which shall permit the Exchange Offer
and resales of Exchange Securities by broker-dealers during the Resale
Period to be effected as contemplated by Section 2(a), and use its best
efforts to cause such Exchange Registration Statement to become
effective as soon as practicable thereafter, but no later than 180 days
after the Closing Date;
(ii) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such Exchange
Registration Statement for the periods and purposes contemplated in
Section 2(a) hereof and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the
form of such Exchange Registration Statement, and promptly provide each
broker-dealer holding Exchange Securities with such number of copies of
the prospectus included therein (as then amended or supplemented), in
conformity in all material respects with the requirements of the
Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder, as such broker-dealer
reasonably may request prior to the expiration of the Resale Period,
for use in connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or
received copies of the prospectus included in such registration
statement, and confirm such advice in writing, (A) when such Exchange
Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Exchange Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
Exchange Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Registration Statement or
the initiation or threatening of any proceedings for that purpose, (D)
if at any time the representations and warranties of the Company
contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Exchange
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, or (F) at any time
during the Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration Statement,
prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all respects to the applicable
requirements of the Securities Act, Exchange Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
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(iv) in the event that the Company would be required, pursuant
to Section 3(c)(iii)(F) above, to notify any broker-dealers holding
Exchange Securities, without delay prepare and furnish to each such
holder a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall conform in
all respects to the applicable requirements of the Securities Act,
Exchange Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder and shall 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 not
misleading in light of the circumstances then existing;
(v) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Registration Statement or
any post-effective amendment thereto at the earliest practicable date;
(vi) use its best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of the Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all
other actions as may be reasonably necessary or advisable to enable
each broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however, that the
Company shall not be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise
be required to qualify but for the requirements of this Section
3(c)(vi), (2) consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(vii) use its reasonable best efforts to obtain the consent or
approval of each governmental agency or authority, whether federal,
state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange
Securities by broker-dealers during the Resale Period;
(viii) provide a Common Code and International Securities
Identification Number for all Exchange Securities, not later than the
applicable Effective Time;
(ix) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but no later than eighteen months after the effective
date of such Exchange Registration Statement, an earning statement of
the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158
thereunder).
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(d) In connection with the Company's obligations with respect to the
Shelf Registration, if applicable, and to the Market Making Shelf, the Company
shall use its best efforts to effect or cause the Shelf Registration Statement,
if applicable, and the Market Making Shelf Registration Statement to permit the
sales of the Registrable Securities by the Holders thereof in accordance with
the intended method or methods of distribution thereof described in the Shelf
Registration, if applicable, and in the Market Making Shelf. In connection
therewith, the Company shall, as soon as practicable (or as otherwise
specified):
(i) prepare and file with the Commission, as soon as
practicable but in any case within the time periods specified in
Section 2(b) or 2(c), as applicable, a Shelf Registration Statement, if
applicable, and a Market Making Shelf Registration Statement on any
form which may be utilized by the Company and which shall register all
of the Registrable Securities for resale by the holders thereof in
accordance with such method or methods of disposition as may be
specified by the Market Maker and such holders as, from time to time,
may be Electing Holders and use its best efforts to cause such Shelf
Registration Statement or Market Making Shelf Registration Statement to
become effective as soon as practicable, but in any case within the
time period specified in Section 2(b) or 2(c), as applicable;
(ii) not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, mail the Notice and
Questionnaire to the holders of Registrable Securities; no holder shall
be entitled to be named as a selling securityholder in the Shelf
Registration Statement as of the Effective Time, and no holder shall be
entitled to use the prospectus forming a part thereof for resales of
Registrable Securities at any time, unless such holder has returned a
completed and signed Notice and Questionnaire to the Company by the
deadline for response set forth therein; provided, however, holders of
Registrable Securities shall have at least 20 calendar days from the
date on which the Notice and Questionnaire is first mailed to such
holders to return a completed and signed Notice and Questionnaire to
the Company, provided further that this paragraph is not applicable to
the Market Making Shelf;
(iii) after the Effective Time of the Shelf Registration
Statement, upon the request of any holder of Registrable Securities
that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be
required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company, provided further that
this paragraph is not applicable to the Market Making Shelf;
(iv) as soon as practicable prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement, if applicable, and such Market Making Shelf Registration
Statement and the prospectus included therein, each in a form
acceptable to the Market Maker, as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement or
Market Making Shelf Registration Statement, as the case may be, for the
period specified in Section 2(b) or Section 2(c) hereof, as applicable,
and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Shelf
Registration Statement and such Market Making Shelf Registration
Statement, and
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furnish to the Market Maker and Electing Holders, if any, copies of any
such supplement or amendment simultaneously with or prior to its being
used or filed with the Commission;
(v) comply with the provisions of the Securities Act and
Exchange Act with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement, if applicable,
or such Market Making Shelf Registration Statement in accordance with
the intended methods of disposition by the Market Maker and/or Electing
Holders provided for in such Shelf Registration Statement, if
applicable, or such Market Making Shelf Registration Statement;
(vi) provide (A) the Electing Holders, (B) the underwriters
(which term, for purposes of this Exchange and Registration Rights
Agreement, shall include a person deemed to be an underwriter within
the meaning of Section 2(a)(11) of the Securities Act), if any,
thereof, (C) any sales or placement agent therefor, (D) not more than
one counsel (and any reasonably necessary local counsel) for any such
underwriter or agent, and (E) not more than one counsel (and any
reasonably necessary local counsel) for all the Electing Holders, the
opportunity to review and provide comments on such Shelf Registration
Statement, if applicable, each prospectus included therein or filed
with the Commission and each amendment or supplement thereto; and
provide (a) the Market Maker and (b) not more than one counsel (and any
reasonably necessary local counsel) for the Market Maker, the
opportunity to review and provide comments on such Making Shelf
Registration Statement, each prospectus included therein or filed with
the Commission and each amendment or supplement thereto;
(vii) for a reasonable period prior to the filing of such
Shelf Registration Statement, if applicable, and such Market Making
Shelf Registration Statement, and throughout the period specified in
Section 2(b) or Section 2(c), as applicable, make available at
reasonable times at the Company's principal place of business or such
other reasonable place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Company that they have a
current intention to sell the Registrable Securities pursuant to the
Shelf Registration or Market Making Shelf such financial and other
information and books and records of the Company, and cause the
officers, employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as shall be
reasonably necessary, in the judgment of the respective counsel
referred to in such Section, to conduct a reasonable investigation
within the meaning of Section 11 of the Securities Act; provided,
however, that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential,
until such time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such registration
statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court
or other governmental agency or body having jurisdiction over the
matter (subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of such
requirement), or (C) such information is required to be set forth in
such Shelf Registration Statement, if applicable, and such Market
Making Shelf Registration Statement or the prospectus included therein
or in an amendment to such Shelf Registration Statement, if applicable,
and such Market Making Shelf Registration Statement or an amendment or
supplement to such prospectus in order that such Shelf Registration
Statement, Market Making Shelf
11
Registration Statement, prospectus, amendment or supplement, as the
case may be, complies with applicable requirements of the federal
securities laws and the rules and regulations of the Commission and
does not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing; and each such party shall, upon request of
the Company, confirm to the Company in writing its acknowledgement of
and agreement to the foregoing confidentiality requirement;
(viii) promptly notify the Market Maker, each of the Electing
Holders, any sales or placement agent therefor and any underwriter
thereof (which notification may be made through any managing
underwriter that is a representative of such underwriter for such
purpose) and confirm such advice in writing, (A) when such Shelf
Registration Statement or such Market Making Shelf Registration
Statement, as applicable, or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such Shelf Registration Statement, if
applicable, or such Market Making Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such Shelf
Registration Statement, if applicable, or such Market Making Shelf
Registration Statement or prospectus or for additional information, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Company contemplated by Section
3(d)(xvii) or Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (F) if at any time when
a prospectus is required to be delivered under the Securities Act, that
such Shelf Registration Statement, if applicable, such Market Making
Shelf Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all respects
to the applicable requirements of the Securities Act, Exchange Act and
the Trust Indenture Act and the rules and regulations of the Commission
thereunder or contains an untrue statement of a material fact or omits
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances then existing;
(ix) use its best efforts to obtain the withdrawal of any
order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(x) if requested by the Market Maker, any managing underwriter
or underwriters, any placement or sales agent or any Electing Holder,
promptly incorporate in a prospectus supplement or post-effective
amendment such information as is required by the applicable rules and
regulations of the Commission and as such Market Maker, managing
underwriter or underwriters, such agent or such Electing Holder
specifies should be included therein relating to the agreed terms of
the sale of such Registrable Securities, including information with
respect to the principal amount of Registrable Securities being sold by
such Market Maker, Electing Holder or agent or to any
12
underwriters, the name and description of such Market Maker, Electing
Holder, agent or underwriter, as applicable, the offering price of such
Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of
the offering of the Registrable Securities to be sold by such Market
Maker, Electing Holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(xi) furnish, without charge, to the Market Maker, each
Electing Holder, each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel referred to in
Section 3(d)(vi) an executed copy (or, in the case of an Electing
Holder, a conformed copy) of such Shelf Registration Statement, each
such amendment and supplement thereto (in each case including all
exhibits thereto (in the case of an Electing Holder of Registrable
Securities, upon request) and documents incorporated by reference
therein) and such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by reference
therein unless specifically so requested by such Market Maker, Electing
Holder, agent or underwriter, as the case may be) and of the prospectus
included in such Shelf Registration Statement, if applicable, and such
Market Making Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all respects
with the applicable requirements of the Securities Act, Exchange Act
and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as such Market Maker,
Electing Holder, agent, if any, and underwriter, if any, may reasonably
request in order to facilitate the offering and disposition of the
Registrable Securities by the Market Maker or such Registrable
Securities owned by such Electing Holder, as the case may be, offered
or sold by such agent or underwritten by such underwriter and to permit
such Electing Holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such preliminary and
summary prospectus) and any amendment or supplement thereto by the
Market Maker and each such Electing Holder, as the case may be, and by
any such agent and underwriter, in each case in the form most recently
provided to such person by the Company, in connection with the offering
and sale of the Registrable Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement
or amendment thereto;
(xii) use its best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration
Statement, if applicable, and such Market Making Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as the Market Maker or any Electing Holder and each
placement or sales agent, if any, therefor and underwriter, if any,
thereof shall reasonably request, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
during the period the Shelf Registration is required to remain
effective under Section 2(b) or Section 2(c), as applicable, above and
for so long as may be necessary to enable the Market Maker or any such
Electing Holder, agent or underwriter to complete its distribution of
Securities pursuant to such Shelf Registration Statement and (C) take
any and all other actions as may be reasonably necessary or advisable
to enable each such Electing Holder, agent, if any, and underwriter, if
any, to consummate the disposition in
13
such jurisdictions of such Registrable Securities; provided, however,
that the Company shall not be required for any such purpose to (1)
qualify as a foreign corporation in any jurisdiction wherein it would
not otherwise be required to qualify but for the requirements of this
Section 3(d)(xii), (2) consent to general service of process in any
such jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) use its best efforts to obtain and maintain the consent
or approval of, and maintain the currency of any necessary filings with
for so long as the Market Maker may be required to deliver a prospectus
in connection with secondary transactions, each governmental agency or
authority, whether federal, state or local, which may be required to
effect the Shelf Registration or Market Making Shelf or the offering or
sale in connection therewith or to enable the Market Maker to conduct
market making activities and any selling holder or holders to offer, or
to consummate the disposition of, their Registrable Securities;
(xiv) Unless any Registrable Securities shall be in book-entry
only form, cooperate with the Market Maker, Electing Holders and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be
sold, which certificates, if so required by any securities exchange
upon which any Registrable Securities are listed, shall be penned,
lithographed or engraved, or produced by any combination of such
methods, on steel engraved borders, and which certificates shall not
bear any restrictive legends; and, in the case of an underwritten
offering, enable such Registrable Securities to be in such
denominations and registered in such names as the managing underwriters
may request at least two business days prior to any sale of the
Registrable Securities;
(xv) provide a Common Code and International Securities
Identification Number for all Registrable Securities, not later than
the applicable Effective Time;
(xvi) enter into one or more underwriting agreements,
engagement letters, agency agreements, "best efforts" underwriting
agreements or similar agreements, as appropriate, including customary
provisions relating to indemnification and contribution, and take such
other actions in connection therewith as any Electing Holders
aggregating at least 20% in aggregate principal amount of the
Registrable Securities at the time outstanding shall reasonably request
in order to expedite or facilitate the disposition of such Registrable
Securities, and to do the same as soon as practicable;
(xvii) whether or not an agreement of the type referred to in
Section 3(d)(xvi) hereof is entered into and whether or not any portion
of the offering contemplated by the Shelf Registration is an
underwritten offering or is made through a placement or sales agent or
any other entity, (A) make such representations and warranties to the
Market Maker, Electing Holders and the placement or sales agent, if
any, therefor and the underwriters, if any, thereof substantially the
same as those set forth in Section 1 of the Purchase Agreement and such
others in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any
appropriate agreement or to a registration statement filed on the
applicable form dated as of the effective date of such Shelf
Registration Statement, if applicable, and such Market Making Shelf
Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated
14
as of the date of the closing under the underwriting agreement relating
thereto); (B) obtain an opinion or opinions of counsel to the Company,
addressed to the Market Maker, such Electing Holder or Electing Holders
and the placement or sales agent, if any, therefor and the
underwriters, if any, thereof and dated the effective date of such
Shelf Registration Statement, if applicable, and such Market Making
Shelf Registration Statement (and if such Shelf Registration Statement
contemplates an underwritten offering of a part or all of the
Registrable Securities, dated the date of the closing under the
underwriting agreement relating thereto) (it being agreed that the
matters to be covered by such opinion shall be substantially the same
as the opinions provided for in Section 7 of the Purchase Agreement,
plus such other opinions covering such matters as are customary in the
context of an offering registered with the Commission by an issuer of
the same type as the Company in regard to material aspects of the
applicable transaction not relevant in the context of the Purchase
Agreement, including, among others: the due authorization, execution
and delivery of the relevant agreement of the type referred to in
Section 3(d)(xvi) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of
the Securities, Exchange Securities or Registrable Securities; the
absence of governmental approvals required to be obtained in connection
with the Shelf Registration, if applicable, or Market Making Shelf, the
offering and sale of the Registrable Securities, this Exchange and
Registration Rights Agreement or any agreement of the type referred to
in Section 3(d)(xvi) hereof; the material compliance as to form of such
Shelf Registration Statement, if applicable, or Market Making Shelf
Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of the
Commission thereunder, respectively; and, as of the date of the opinion
and of the Shelf Registration Statement or Market Making Shelf
Registration Statement or most recent post-effective amendment thereto,
as the case may be, the absence from such Shelf Registration Statement
or Market Making Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, and from the
documents incorporated by reference therein (in each case other than
the financial statements and other financial information contained
therein) of an untrue statement of a material fact or the omission to
state therein a material fact necessary to make the statements therein
not misleading (in the case of such documents, in the light of the
circumstances existing at the time that such documents were filed with
the Commission under the Exchange Act)); (C) obtain a "cold comfort"
letter or letters from the independent certified public accountants of
the Company addressed to the Market Maker, selling Electing Holders,
the placement or sales agent, if any, therefor or the underwriters, if
any, thereof, dated (i) the effective date of such Shelf Registration
Statement, if applicable, and such Market Making Shelf Registration
Statement and (ii) the effective date of any prospectus supplement to
the prospectus included in such Shelf Registration Statement, if
applicable, and such Market Making Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement, if
applicable, and such Market Making Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for
a period subsequent to that of the latest such statements included in
such prospectus (and, if such Shelf Registration Statement contemplates
an underwritten offering pursuant to any prospectus supplement to the
prospectus included in such Shelf Registration Statement or
post-effective amendment to such Shelf Registration Statement which
includes unaudited or audited financial statements as of a date or for
a period subsequent to that of the latest such statements included in
such prospectus, dated the date of the closing under the underwriting
agreement relating thereto), such letter or letters to be in
15
customary form and covering such matters of the type customarily
covered by letters of such type; (D) deliver such documents and
certificates, including officers' certificates, as may be reasonably
requested by the Market Maker or any Electing Holders of at least 20%
in aggregate principal amount of the Registrable Securities at the time
outstanding or the placement or sales agent, if any, therefor and the
managing underwriters, if any, thereof to evidence the accuracy of the
representations and warranties made pursuant to clause (A) above or
those contained in Section 5(a) hereof and the compliance with or
satisfaction of any agreements or conditions contained in the
underwriting agreement or other agreement entered into by the Company
dated as of the effective date of such Shelf Registration Statement, if
applicable, and such Market Making Shelf Registration Statement (and if
such Shelf Registration Statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated as of the date of
the closing under the underwriting agreement relating thereto) and the
date of filing of an amendment or supplement to such Shelf Registration
Statement or Market Making Shelf Registration Statement or any other
document that is incorporated therein by reference; (E) provide
certification that the Exchange Registration Statement, Shelf
Registration Statement, if applicable, and Market Making Shelf
Registration Statement is effective, and (F) undertake such obligations
relating to expense reimbursement, indemnification and contribution as
are provided in Section 6 hereof;
(xviii) notify in writing the Market Maker and each holder of
Registrable Securities affected by of any proposal by the Company to
amend or waive any provision of this Exchange and Registration Rights
Agreement pursuant to Section 9(h) hereof and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain
the text of the amendment or waiver proposed or effected, as the case
may be;
(xix) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Conduct Rules (the
"Conduct Rules") of the National Association of Securities Dealers,
Inc. ("NASD") or any successor thereto, as amended from time to time)
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such broker-dealer in complying
with the requirements of such Conduct Rules, including by (A) if such
Conduct Rules shall so require, engaging at the expense of such broker
dealer a "qualified independent underwriter" (as defined in such
Conduct Rules) to participate in the preparation of the Shelf
Registration Statement relating to such Registrable Securities, to
exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Shelf Registration
Statement is an underwritten offering or is made through a placement or
sales agent, to recommend the yield of such Registrable Securities, (B)
indemnifying any such qualified independent underwriter to the extent
of the indemnification of underwriters provided in Section 6 hereof (or
to such other customary extent as may be requested by such
underwriter), and (C) providing such information to such broker-dealer
as may be required in order for such broker-dealer to comply with the
requirements of the Conduct Rules;
(xx) comply with all applicable rules and regulations of the
Commission, and make generally available to its securityholders as soon
as practicable but in any event not later than eighteen months after
the effective date of such Shelf Registration Statement, if applicable,
and such Market Making Shelf Registration Statement, an
16
earning statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder);
(xxi) provide to the Market Maker: (i) all information
provided to the Trustee or to holders as required by Section 1019 of
the Indenture, (ii) all information provided to the Commission (unless
provided on a confidential basis), (iii) all information provided to
any securities exchange on which any of its securities are listed or to
any interdealer automated quotation system on which any of its
securities are traded and (iv) any other information that the Market
Maker shall reasonably request;
(xxii) promptly upon its satisfying the eligibility criteria
for use of Form F-3 under the Securities Act, the Company shall file a
post-effective amendment to the Market Making Shelf Registration
Statement to convert it from a Form F-1 to a Form F-3 registration
statement; and
(xxiii) use its best efforts to take all other steps necessary
to effect or cause the Shelf Registration, if applicable, and the
Market Making Shelf Registration Statement to permit the sale of the
Registrable Securities by the Market Makers or Electing Holders thereof
in accordance with the intended method or methods of distribution
thereof described in the Shelf Registration Statement, if applicable,
and the Market Making Shelf Registration Statement.
(e) In the event that the Company would be required, pursuant to
Section 3(d)(viii)(F) above, to notify the Market Maker and Electing Holders,
the placement or sales agent, if any, therefor and the managing underwriters, if
any, thereof, the Company shall without delay prepare and furnish to the Market
Maker, each of the Electing Holders, to each placement or sales agent, if any,
and to each such underwriter, if any, a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to
purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission thereunder
and shall 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 not misleading in light of the circumstances then existing. The Market
Maker and each Electing Holder agrees that upon receipt of any notice from the
Company pursuant to Section 3(d)(viii)(F) hereof, such Electing Holder shall
forthwith discontinue the disposition of Registrable Securities pursuant to the
Shelf Registration Statement, if applicable, and the Market Making Shelf
Registration Statement applicable to such Registrable Securities until such
Market Maker or Electing Holder shall have received copies of such amended or
supplemented prospectus, and if so directed by the Company, such Market Maker or
Electing Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such Market Maker's or
Electing Holder's possession of the prospectus covering such Registrable
Securities at the time of receipt of such notice.
(f) With respect to the Market Making Shelf and in the event of a Shelf
Registration, in addition to the information required to be provided by each
Electing Holder in its Notice Questionnaire, the Company may require the Market
Maker or such Electing Holder, as the case may be, to furnish to the Company
such additional information regarding the Market Maker or such Electing Holder,
as the case may be, and the Market Maker's or such Electing Holder's intended
method of distribution of Registrable Securities as may be required in order to
comply with the Securities Act. The Market Maker and each such Electing Holder
agrees to
17
notify the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by the Market Maker or such Electing Holder to
the Company or of the occurrence of any event in either case as a result of
which any prospectus relating to such Shelf Registration or Market Making Shelf
contains or would contain an untrue statement of a material fact regarding the
Market Maker or such Electing Holder, as the case may be, or the Market Maker's
or such Electing Holder's intended method of disposition of such Registrable
Securities or omits to state any material fact regarding the Market Maker or
such Electing Holder, as the case may be, or the Market Maker's or such Electing
Holder's intended method of disposition of such Registrable Securities required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to furnish to the
Company any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to the Market Maker or such Electing Holder or the disposition of
such Registrable Securities, 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 in light of the circumstances then existing.
The Market Maker and each such Electing Holder shall comply with the provisions
of the Securities Act applicable to the Market Maker or such Electing Holder
with respect to the disposition by the Market Maker or Electing Holder of
Registrable Securities covered by such registration statement in accordance with
the intended methods of disposition by such holder set forth in such
registration statement.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined in
Rule 144), other than the Market Maker, to resell any of the Securities which
constitute "restricted securities" under Rule 144 that have been reacquired by
any of them.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all
expenses incident to the Company's performance of or compliance with this
Exchange and Registration Rights Agreement, including (a) all Commission and any
NASD registration, filing and review fees and expenses including fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such registration, filing and review, (b) all fees and expenses
in connection with the qualification of the Securities for offering and sale
under the State securities and blue sky laws referred to in Section 3(d)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions as the Market Maker, any managing underwriters or the
Electing Holders may designate, including any fees and disbursements of counsel
for the Market Maker, the Electing Holders or underwriters in connection with
such qualification and determination, (c) all expenses relating to the
preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of Securities and the preparation of
documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and any counsel for the Trustee
and of any collateral agent or custodian, (f) internal expenses (including all
salaries and
18
expenses of the Company's officers and employees performing legal or accounting
duties), (g) fees, disbursements and expenses of counsel and independent
certified public accountants of the Company (including the expenses of any
opinions or "cold comfort" letters required by or incident to such performance
and compliance), (h) fees, disbursements and expenses of any "qualified
independent underwriter" engaged pursuant to Section 3(d)(xix) hereof, (i) fees,
disbursements and expenses of counsel for the Market Maker retained in
connection with a Market Making Shelf, as selected by the Market Maker, (j)
fees, disbursements and expenses of one counsel for the Electing Holders
retained in connection with a Shelf Registration, as selected by the Electing
Holders of at least a majority in aggregate principal amount of the Registrable
Securities held by Electing Holders (which counsel shall be reasonably
satisfactory to the Company), (k) any fees charged by securities rating services
for rating the Securities, and (l) fees, expenses and disbursements of any other
persons, including special experts, retained by the Company in connection with
such registration (collectively, the "Registration Expenses"). To the extent
that any Registration Expenses are incurred, assumed or paid by the Market
Maker, any holder of Registrable Securities or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid promptly
after receipt of a request therefor. Notwithstanding the foregoing, the holders
of the Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Market
Maker, each Purchaser and each of the holders from time to time of Registrable
Securities that:
(a) Each registration statement covering Registrable Securities and
each registration statement filed in connection with the Market Making Shelf and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c), Section 3(d) or Section 3(e)
hereof and any further amendments or supplements to any such registration
statement or prospectus, when it becomes effective or is filed with the
Commission, as the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all respects to the applicable
requirements of the Securities Act, Exchange Act and the Trust Indenture Act and
the rules and regulations of the Commission thereunder and 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 not misleading;
and at all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such time
as a notice has been given to holders of Registrable Securities pursuant to
Section 3(c)(iii)(F) or Section 3(d)(viii)(F) hereof until (ii) such time as the
Company furnishes an amended or supplemented prospectus pursuant to Section
3(c)(iv) or Section 3(e) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or furnished
pursuant to Section 3(c), Section 3(d) or Section 3(e) hereof, as then amended
or supplemented, will conform in all respects to the applicable requirements of
the Securities Act, Exchange Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder and 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 not misleading in the
light of the
19
circumstances then existing; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by a
holder of Registrable Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or were
filed with the Commission, as the case may be, will conform or conformed in all
material respects to the requirements of the Securities Act or the Exchange Act,
as applicable, and none of such documents will contain or contained an untrue
statement of a material fact or will omit or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the Market Maker or a
holder of Registrable Securities expressly for use therein.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any subsidiary of the Company is a party or by which the
Company or any subsidiary of the Company is bound or to which any of the
property or assets of the Company or any subsidiary of the Company is subject,
nor will such action result in any violation of the provisions of the
certificate of incorporation, as amended, or the by-laws of the Company or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any subsidiary of the Company or
any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required for the consummation by the Company of the transactions
contemplated by this Exchange and Registration Rights Agreement, except the
registration under the Securities Act of the Securities, qualification of the
Indenture under the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under State
securities or blue sky laws in connection with the offering and distribution of
the Securities.
(d) This Exchange and Registration Rights Agreement has been duly
authorized, executed and delivered by the Company.
(e) The Exchange Securities have been duly authorized and, when issued
and delivered pursuant to this Exchange and Registration Rights Agreement, will
constitute the valid and legally binding obligations of the Company, entitled to
the benefits of the indenture under which they are to be issued.
6. Indemnification.
(a) Indemnification by the Company. In consideration of the agreements
of the Purchasers contained herein, and as an inducement to the Purchasers to
purchase the Securities, the Company will indemnify and hold harmless each of
the holders of Registrable Securities included in an Exchange Registration
Statement, each of the Electing Holders of Registrable Securities included in a
Shelf Registration Statement, the Market Maker, each person who participates as
a placement or sales agent or as an underwriter in any offering or
20
sale of such Registrable Securities, and each person, if any, who controls such
Electing Holders, agents, underwriters or Market Maker within the meaning of the
Securities Act or the Exchange Act (each such Electing Holder, agent,
underwriter, Market Maker and such controlling persons referred to collectively
as the "Indemnified Parties" and each an "Indemnified Party") against any
losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party or Indemnified Parties may become subject under the Securities
Act and Exchange Act, in each case including under any rules or regulations
thereunder, or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
Exchange Registration Statement or Shelf Registration Statement or Market Making
Shelf Registration Statement, as the case may be, under which such Registrable
Securities were registered under the Securities Act, or any preliminary, final
or summary prospectus contained therein or furnished by the Company to any such
Indemnified Party, or any amendment or supplement thereto, or arise out of or
are based upon the 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 in the case of the Market Maker, any breach by the Company of its
representations, warranties and agreements contained herein, and will reimburse
such Indemnified Party for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such action or claim as
such expenses are incurred; provided, however, that the Company shall not be
liable to any such person in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by such person expressly for use therein.
(b) Indemnification by the Market Makers, Electing Holders and any
Agents and Underwriters. The Company may require, as a condition to including
any Registrable Securities in any registration statement filed pursuant to
Section 2(b) or Section 2(c) hereof and to entering into any underwriting
agreement with respect thereto, that the Company shall have received an
undertaking reasonably satisfactory to it from the Market Maker or Electing
Holder of such Registrable Securities, as applicable, and from each underwriter
named in any such underwriting agreement, severally and not jointly, to (i)
indemnify and hold harmless the Company, and all other holders of Registrable
Securities, against any losses, claims, damages or liabilities to which the
Company or such other holders of Registrable Securities may become subject,
under the Securities Act and Exchange Act, in each case including under any
rules or regulations promulgated thereunder, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in such registration statement, or any preliminary,
final or summary prospectus contained therein or furnished by the Company to the
Market Maker or any such Electing Holder, as applicable, or underwriter, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by such Market
Maker, if applicable, Electing Holder, underwriter or agent expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
no such Electing Holder shall be required to undertake liability to any person
under this Section 6(b) for any amounts in excess of the euro amount of the
21
proceeds to be received by such Electing Holder from the sale of such Electing
Holder's Registrable Securities pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 6, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) are unavailable to or insufficient
to hold harmless an indemnified party in respect of any losses, claims, damages
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the 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 by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), (i) no holder shall be required to contribute
any amount in excess of the amount by which the euro amount of the
22
proceeds received by such holder from the sale of any Registrable Securities
(after deducting any fees, discounts and commissions applicable thereto) exceeds
the amount of any damages which such holder has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission, (ii) in the case of a Market Making Shelf Registration Statement
relating to the sale by the Market Maker of Securities, the Market Maker shall
not be required to contribute any amount in excess of the amount by which the
euro amount of the proceeds received by the Market Maker from the sale of any
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) exceeds the amount of any damages which it has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission and (iii) no underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Registrable Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such underwriter
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' and any underwriters' obligations in
this Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of the
Market Maker, each holder, agent and underwriter and each person, if any, who
controls the Market Maker, any holder, agent or underwriter within the meaning
of the Securities Act; and the obligations of the Market Maker, the holders and
any agents or underwriters contemplated by this Section 6 shall be in addition
to any liability which the respective, holder, agent or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any registration statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Securities Act.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by the Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be designated
by Electing Holders holding at least a majority in aggregate principal amount of
the Registrable Securities to be included in such offering, provided that such
designated managing underwriter or underwriters is or are reasonably acceptable
to the Company and to the Market Maker.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may participate in
any underwritten offering hereunder unless such holder (i) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
23
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities 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 within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants,
covenants and agrees that it has not granted, and shall not grant, registration
rights with respect to Registrable Securities or any other securities which
would be inconsistent with the terms contained in this Exchange and Registration
Rights Agreement.
(b) Specific Performance. The parties hereto acknowledge that there
would be no adequate remedy at law if the Company fails to perform any of its
obligations hereunder and that the Purchasers and the holders from time to time
of the Registrable Securities may be irreparably harmed by any such failure, and
accordingly agree that the Purchasers and such holders, in addition to any other
remedy to which they may be entitled at law or in equity, shall be entitled to
compel specific performance of the obligations of the Company under this
Exchange and Registration Rights Agreement in accordance with the terms and
conditions of this Exchange and Registration Rights Agreement, in any court of
the United States or any State thereof having jurisdiction.
(c) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company, to it
at Frankfurt Airport Center 1, C9; ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, and if to
a holder, to the address of such holder set forth in the security register or
other records of the Company, or to such other address as the Company or any
such holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
(d) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders from
time to time of the Registrable Securities and the respective successors and
assigns of the parties hereto and such holders. In the event that any transferee
of any holder of Registrable Securities shall acquire Registrable Securities, in
any manner, whether by gift, bequest, purchase, operation of law or otherwise,
such transferee shall, without any further writing or action of any kind, be
deemed a beneficiary
24
hereof for all purposes and such Registrable Securities shall be held subject to
all of the terms of this Exchange and Registration Rights Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of, and be conclusively deemed to have agreed to be
bound by all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold the
Registrable Securities subject to all of the applicable terms hereof.
(e) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and Registration
Rights Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof) made
by or on behalf of any holder of Registrable Securities, any director, officer
or partner of such holder, any agent or underwriter or any director, officer or
partner thereof, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the
Purchase Agreement and the transfer and registration of Registrable Securities
by such holder and the consummation of an Exchange Offer.
(f) Governing Law. This Exchange and Registration Rights Agreement
shall be governed by and construed in accordance with the laws of the State of
New York.
(g) Submission to Jurisdiction. Each party to this agreement
irrevocably (i) agrees that any legal suit, action or proceeding against the
Company brought by any Purchaser or by any person who controls any Purchaser
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any New York Court, (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and (iii) submits to the
exclusive jurisdiction of such courts in any such suit, action or proceeding.
The Company irrevocably waives any immunity to jurisdiction to which it may
otherwise be entitled or become entitled (including sovereign immunity, immunity
to pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it arising out of or based on this Agreement
or the transactions contemplated hereby which is instituted in any New York
Court or in any competent court in Germany. The Company has appointed CT
Corporation, at its address in New York, New York, as its authorized agent (the
"Authorized Agent") upon whom process may be served in any such action arising
out of or based on this Agreement or the transactions contemplated hereby which
may be instituted in any New York Court by any Purchaser or by any person who
controls any Purchaser, expressly consents to the jurisdiction of any such court
in respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such appointment shall
be irrevocable. The Company represents and warrants that the Authorized Agent
has agreed to act as such agent for service of process and agrees to take any
and all action, including the filing of any and all documents and instruments,
that may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company.
(h) In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "Judgment Currency")
other than U.S. dollars, the Company will indemnify the Indemnified Party
against any loss incurred as a result of variations between (i) the rate of
exchange at which the U.S. dollar is converted into the Judgement Currency for
the purpose of such judgment or order and (ii) the rate of exchange at
25
which the Indemnified Party is able to purchase U.S. dollars with the amount of
the Judgment Currency actually received. The foregoing indemnity shall
constitute a separate and independent obligation of the Company and shall
continue in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" shall include any premiums and costs of
exchange payable in connection with the purchase or conversion of U.S. dollars.
(i) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted for
convenience only, do not constitute a part of this Exchange and Registration
Rights Agreement and shall not affect in any way the meaning or interpretation
of this Exchange and Registration Rights Agreement.
(j) Entire Agreement; Amendments. This Exchange and Registration Rights
Agreement and the other writings referred to herein (including the Indenture and
the form of Securities) or delivered pursuant hereto which form a part hereof
contain the entire understanding of the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter. This Exchange and Registration Rights Agreement may be amended and the
observance of any term of this Exchange and Registration Rights Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the
holders of at least a majority in aggregate principal amount of the Registrable
Securities at the time outstanding, provided, however, that the provisions
relating to the Market Making Shelf may only be amended by a written instrument
duly executed by the Company and the Market Maker. Each holder of any
Registrable Securities at the time or thereafter outstanding shall be bound by
any amendment or waiver effected pursuant to this Section 9(h), whether or not
any notice, writing or marking indicating such amendment or waiver appears on
such Registrable Securities or is delivered to such holder.
(k) Inspection. For so long as this Exchange and Registration Rights
Agreement shall be in effect, this Exchange and Registration Rights Agreement
and a complete list of the names and addresses of the Market Maker and all the
holders of Registrable Securities shall be made available for inspection and
copying on any business day by the Market Maker and any holder of Registrable
Securities for proper purposes only (which shall include any purpose related to
the rights of the holders of Registrable Securities under the Securities, the
Indenture and this Agreement) at the offices of the Company at the address
thereof set forth in Section 9(c) above and at the office of the Trustee under
the Indenture.
(l) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
26
If the foregoing is in accordance with your understanding, please sign
and return to us six (6) counterparts hereof, and upon the acceptance hereof by
you, on behalf of each of the Purchasers, this letter and such acceptance hereof
shall constitute a binding agreement between each of the Purchasers and the
Company. It is understood that your acceptance of this letter on behalf of each
of the Purchasers is pursuant to the authority set forth in a form of Agreement
among Purchasers, the form of which shall be submitted to the Company for
examination upon request, but without warranty on your part as to the authority
of the signers thereof.
Very truly yours,
▇▇▇▇▇▇ GRIESHEIM HOLDING AG
ON BEHALF OF ALL MEMBERS OF THE MANAGEMENT BOARD
PURSUANT TO A RESOLUTION UNDER SECTION 78 IV 1 AKTG DATED MAY 11, 2001
By: /s/ ▇▇. ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇. ▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Member of the Management Board
Accepted as of the date hereof:
▇▇▇▇▇▇▇ Sachs International
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Signatory
On behalf of each of the Purchasers
27
Draft of May 10, 2001 Exchange and Registration Rights Agreement
Exhibit A
▇▇▇▇▇▇ Griesheim Holding AG
INSTRUCTION TO EUROCLEAR AND CLEARSTREAM PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE] *
Euroclear and/or Clearstream has identified you as a Euroclear or
Clearstream Participant through which beneficial interests in ▇▇▇▇▇▇ Griesheim
Holding AG (the "Company") 10.375% Senior Notes due 2011 (the "Securities") are
held.
The Company is in the process of registering the Securities under the
Securities Act of 1933 for resale by the beneficial owners thereof. In order to
have their Securities included in the registration statement, beneficial owners
must complete and return the enclosed Notice of Registration Statement and
Selling Securityholder Questionnaire.
IT IS IMPORTANT THAT BENEFICIAL OWNERS OF THE SECURITIES RECEIVE A COPY
OF THE ENCLOSED MATERIALS AS SOON AS POSSIBLE as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by [Deadline For Response]. Please forward a copy
of the enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact ▇▇▇▇▇▇ Griesheim
Holding AG, Frankfurt Airport ▇▇▇▇▇▇ ▇, ▇▇; ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
(▇▇▇) ▇▇ ▇▇ ▇▇ ▇▇.
▇▇▇▇▇▇ Griesheim Holding AG
Notice of Registration Statement
and
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement") between ▇▇▇▇▇▇
Griesheim Holding AG (the "Company") and the Purchasers named therein. Pursuant
to the Exchange and Registration Rights Agreement, the Company has filed with
the United States Securities and Exchange Commission (the "Commission") a
registration statement on Form [__] (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the U.S. Securities Act of 1933, as
amended (the "Securities Act"), of the Company's 10.375% Senior Notes due
__________________________
*Not less than 20 calendar days from date of mailing.
A-1
2011 (the "Securities"). A copy of the Exchange and Registration Rights
Agreement is attached hereto. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Exchange and Registration Rights
Agreement.
Each beneficial owner of Registrable Securities (as defined below) is
entitled to have the Registrable Securities beneficially owned by it included in
the Shelf Registration Statement. In order to have Registrable Securities
included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire ("Notice and Questionnaire")
must be completed, executed and delivered to the Company's counsel at the
address set forth herein for receipt ON OR BEFORE [Deadline for Response].
Beneficial owners of Registrable Securities who do not complete, execute and
return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
The term "REGISTRABLE SECURITIES" is defined in the Exchange and
Registration Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Exchange and Registration
Rights Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto. [Note to Company: If for any reason the Registration
Rights Agreement is not included in the mailing of the Notice and Questionnaire,
the indemnity in Section 5(b) of the Exchange and Registration Rights Agreement,
as it relates to Selling Security Holders, should be repeated in its entirety
here.]
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus and as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to
the Company and represents and warrants that such information is accurate and
complete:
A-3
Exchange and Registration
Rights Agreement
QUESTIONNAIRE
(1)(a) Full Legal Name of Selling Securityholder:
________________________________________________________________________
(b) Full Legal Name of Registered Holder (if not the same as in
(a) above) of Registrable Securities Listed in Item (3) below:
________________________________________________________________________
(c) Full Legal Name of Euroclear or Clearstream Participant (if
applicable and if not the same as (b) above) Through Which
Registrable Securities Listed in Item (3) below are Held:
________________________________________________________________________
(2) Address for Notices to Selling Securityholder:
___________________________________
___________________________________
___________________________________
Telephone: ___________________________________
Fax: ___________________________________
Contact Person:___________________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:__________
Common Code/ISIN No(s). of such Registrable Securities:_________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:_____________________________________________________
Common Code/ISIN No(s). of such other Securities:_______________________
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement:_____________________
Common Code/ISIN No(s). of such Registrable Securities to be included
in the Shelf Registration Statement:____________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in Item
(3). State any exceptions here:
A-4
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation service
on which the Registered Securities may be listed or quoted at the time of sale,
(ii) in the over-the-counter market, (iii) in transactions otherwise than on
such exchanges or services or in the over-the-counter market, or (iv) through
the writing of options. In connection with sales of the Registrable Securities
or otherwise, the Selling Securityholder may enter into hedging transactions
with broker-dealers, which may in turn engage in short sales of the Registrable
Securities in the course of hedging the positions they assume. The Selling
Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section
3(d) of the Exchange and Registration Rights Agreement to provide such
information as may be required by law for inclusion in the Shelf Registration
Statement, the Selling Securityholder agrees to promptly notify the Company of
any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration
A-5
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(ii) With a copy to:
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above). This Agreement shall be governed in all respects by the laws of the
State of New York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:_______________
___________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By:________________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR
RECEIPT ON OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
A-7
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
▇▇▇▇▇▇ Griesheim Holding AG and
The Bank of New York
c/o The Bank of New York
One Canada Square
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Trust Officer
Re: ▇▇▇▇▇▇ Griesheim Holding AG (the "Company")
10.375% Senior Notes due 2011
Dear Sirs:
Please be advised that ____________________ has transferred
$____________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form [____] (File No. 333-____) filed
by the Company.
We hereby certify that the prospectus delivery requirements, if any, of
the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated [date] or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated: [ ]
Very truly yours,
__________________________________
(Name)
By:
__________________________________
(Authorized Signature)
B-1
