EXHIBIT 10.29
$515,000,000
XXXX CORPORATION
ZERO-COUPON CONVERTIBLE SENIOR NOTES DUE 2022
REGISTRATION RIGHTS AGREEMENT
February 14, 2002
Credit Suisse First Boston Corporation,
As Representative of the Several Initial Purchasers,
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Xxxx Corporation, a Delaware corporation (the "ISSUER"), proposes to
issue and sell to Credit Suisse First Boston Corporation, Xxxxxx Brothers Inc.
and X.X. Xxxxxx Securities Inc. (the "INITIAL PURCHASERS"), upon the terms set
forth in a purchase agreement of even date herewith (the "PURCHASE AGREEMENT"),
up to $640,000,000 aggregate principal amount at maturity of its Zero-Coupon
Convertible Senior Notes due 2022 (the "INITIAL SECURITIES") to be guaranteed
(the "GUARANTEES") by the Guarantors listed on the signature page of this
Agreement (the "GUARANTORS" and, collectively with the Issuer, the "COMPANY").
The Initial Securities will be convertible into shares of common stock, par
value $0.01 per share, of the Issuer (the "COMMON STOCK") at the conversion
price set forth in the Offering Circular dated February 14, 2002. The Initial
Securities will be issued pursuant to an Indenture, dated as of February 20,
2002 (the "INDENTURE"), among the Issuer, the Guarantors named therein and The
Bank of New York, as trustee (the "TRUSTEE"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Company agrees with the
Initial Purchasers, for the benefit of (i) the Initial Purchasers and (ii) the
holders of the Initial Securities and the Common Stock issuable upon conversion
or otherwise in respect of the Initial Securities (collectively, the
"SECURITIES") from time to time until such time as such Securities have been
sold pursuant to a Shelf Registration Statement (as defined below) (each of the
forgoing a "HOLDER" and collectively the "HOLDERS"), as follows:
1. Shelf Registration. (a) The Company shall, at its cost, prepare and,
as promptly as reasonably practicable (but in no event more than 60 days after
so required or requested pursuant to this Section 1) file with the Securities
and Exchange Commission (the "COMMISSION") and thereafter use its reasonable
best efforts to cause to be declared effective as soon as practicable a
registration statement on Form S-3 (the "SHELF REGISTRATION STATEMENT" relating
to the offer and sale of the Transfer Restricted Securities (as defined in
Section 5 hereof) by the Holders thereof from time to time in accordance with
the methods of distribution set forth in the Shelf Registration Statement and
Rule 415 under the Securities Act of 1933, as amended (the "SECURITIES ACT")
(hereinafter, the "SHELF REGISTRATION"); provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all the provisions of this Agreement applicable to such
Holder.
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(b) The Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective in order to permit the prospectus
included therein (the "PROSPECTUS") to be lawfully delivered by the Holders of
the relevant Securities, for a period of two years (or for such longer period if
extended pursuant to Section 2(h) below) from the date of its effectiveness or
such shorter period that will terminate when all the Securities covered by the
Shelf Registration Statement (i) have been sold pursuant thereto or (ii) have
been distributed to the public pursuant to Rule 144 under the Securities Act or
any successor provision or are saleable by persons who are not affiliates of the
Company pursuant to Rule 144(k) under the Securities Act, or any successor
provision, or (iii) cease to be outstanding (in any such case, such period being
called the "Shelf REGISTRATION PERIOD"). The Company shall be deemed not to have
used its reasonable best efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action that
would result in Holders of Securities covered thereby not being able to offer
and sell such Securities during that period, unless such action is (i) required
by applicable law or (ii) taken by the Company in good faith and contemplated by
Section 2(b) below, and the Company thereafter complies with the requirements of
Section 2(h).
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and the
Prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in all
material respects with the applicable requirements of the Securities Act and the
rules and regulations of the Commission and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(d) Each Holder of Transfer Restricted Securities agrees that if such
Holder wishes to sell Transfer Restricted Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 1(d) and Section 2(b). Each Holder of Transfer Restricted
Securities wishing to sell Transfer Restricted Securities pursuant to a Shelf
Registration Statement and related Prospectus agrees to deliver a written
notice, substantially in the form of Annex A to the Offering Circular (a "NOTICE
and QUESTIONNAIRE") to the Company at least ten (10) Business Days (a "BUSINESS
DAY" meaning each day that is not a legal holiday) prior to any intended
distribution of Transfer Restricted Securities under the Shelf Registration
Statement (each such Holder delivering the Notice and Questionnaire, a "NOTICE
HOLDER"). From and after the date the Shelf Registration Statement is declared
effective, the Company shall, as promptly as reasonably practicable after the
date of receipt of a Notice and Questionnaire (i) if required by applicable law,
file with the SEC a post-effective amendment to the Shelf Registration Statement
or prepare and, if required by applicable law, file a supplement to the related
prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required under the Securities Act so that
the Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver such Prospectus to purchasers
of the Transfer Restricted Securities in accordance with applicable law and, if
the Company shall file a post-effective amendment to the Shelf Registration
Statement, use reasonable best efforts to cause such post-effective amendment to
be declared effective under the Securities Act as promptly as is practicable,
but in any event by the date (the "AMENDMENT EFFECTIVENESS DEADLINE DATE") that
is the later of (x) forty-five (45) Business Days after the date such
post-effective amendment is required by this clause to be filed and (y) ten (10)
Business Days after the conclusion of any Deferred Period existing during the
period referred to in the foregoing clause (x); (ii) provide such Holder copies
of any documents filed pursuant to Section 1(d)(i); and (iii) notify such Holder
as promptly as practicable after the effectiveness under the Securities Act of
any post-effective amendment filed pursuant to Section 1(d)(i); provided that if
such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 2(b). Any Holder who,
subsequent to the date the Registration Statement is declared effective,
provides a Notice and Questionnaire required by this
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Section 1(d) pursuant to the provisions of this Section (whether or not such
Holder has supplied the Notice and Questionnaire at the time the Shelf
Registration Statement was declared effective) shall be named as a selling
securityholder in the Shelf Registration Statement and related Prospectus in
accordance with the requirements of this Section 1(d).
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Company shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
Prospectus included therein and, in the event that an Initial Purchaser (with
respect to any portion of an unsold allotment from the original offering) is
participating in the Shelf Registration Statement, shall use its reasonable best
efforts to reflect in each such document, when so filed with the Commission,
such comments as such Initial Purchaser reasonably may propose; and (ii) include
the names of the Holders who propose to sell Securities pursuant to the Shelf
Registration Statement as selling securityholders.
(b) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation of proceedings
with respect to a Shelf Registration Statement under Section 8(d) or 8(e) of the
Securities Act, (B) the occurrence of any event or the existence of any fact (a
"MATERIAL EVENT") as a result of which any Registration Statement shall contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any Prospectus shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development, public filing with the SEC or other
similar event with respect to the Company that, in the reasonable discretion of
the Company, makes it appropriate to suspend the availability of a Shelf
Registration Statement and the related Prospectus, (i) in the case of clause (B)
above, subject to the next sentence, as promptly as practicable prepare and
file, if necessary pursuant to applicable law, a post-effective amendment to
such Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required document
that would be incorporated by reference into such Registration Statement and
Prospectus so that such Registration Statement does not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
such Prospectus does not contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, and, in the case of a post-effective amendment to a
Registration Statement, subject to the next sentence, use reasonable efforts to
cause it to be declared effective as promptly as is practicable, and (ii) give
notice to the Initial Purchasers and the Holders that the availability of the
Shelf Registration Statement is suspended (a "DEFERRAL NOTICE") and, upon
receipt of any Deferral Notice, each Holder agrees not to sell any Transfer
Restricted Securities pursuant to the Registration Statement until such Holder's
receipt of copies of the supplemented or amended Prospectus provided for in
clause (i) above, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use reasonable best efforts to ensure that
the use of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as, in the
discretion of the Company, such suspension is no longer appropriate. The Company
shall be entitled to exercise its right under this Section 2(b) to suspend the
availability of the Shelf Registration Statement or any Prospectus, without
incurring or accruing any obligation to pay Additional
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Interest pursuant to Section 6, for one or more periods not to exceed 45 days in
any 90 day period and not to exceed, in the aggregate, 90 days in any 12-month
period (such period, during which the availability of the Registration Statement
and any Prospectus is suspended being a "DEFERRAL PERIOD").
(c) The Company shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Notice Holder of Securities
included within the coverage of the Shelf Registration, without charge, at least
one copy of the Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference).
(e) The Company shall, during the Shelf Registration Period, deliver to
each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the Prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
Prospectus or any amendment or supplement thereto by each of the Notice Holders
of the Securities in connection with the offering and sale of the Securities
covered by the Prospectus, or any amendment or supplement thereto, included in
the Shelf Registration Statement.
(f) Prior to any public offering of the Securities pursuant to the
Shelf Registration Statement, the Company shall register or qualify or cooperate
with the Notice Holders included therein and their respective counsel in
connection with the registration or qualification of the Securities for offer
and sale under the securities or "blue sky" laws of such states of the United
States as any Notice Holder reasonably requests in writing and do any and all
other acts or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by the Shelf Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so qualified
or (ii) take any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Notice Holders to facilitate
the timely preparation and delivery of certificates representing the Securities
to be sold pursuant to any Shelf Registration Statement free of any restrictive
legends and in such denominations and registered in such names as the Notice
Holders may request a reasonable period of time prior to sales of the Securities
pursuant to the Shelf Registration Statement.
(h) If the Company notifies the Initial Purchasers and the Holders in
accordance with paragraph Section 2(b) above to suspend the use of the
Prospectus until the requisite changes to the Prospectus have been made, then
the Initial Purchasers and the Holders shall suspend use of such Prospectus, and
the period of effectiveness of the Shelf Registration Statement provided for in
Section 1(b) above shall be extended by the number of days from and including
the date of the giving of such notice to and including the date when the Initial
Purchasers and the Holders shall have received such amended or supplemented
Prospectus pursuant to this Section 2(h).
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Initial Securities and
the Common Stock registered under the Shelf Registration Statement, and provide
the Trustee with printed certificates for the Initial Securities, in a form
eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the Shelf
Registration and will make generally available to its security holders (or
otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement
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satisfying the provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Shelf Registration Statement,
which statement shall cover such 12-month period.
(k) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE ACT"), in a timely
manner and containing such changes, if any, as shall be necessary for such
qualification. 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.
(l) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of the Securities as the
Company may from time to time reasonably require for inclusion in the Shelf
Registration Statement, and the Company may exclude from such registration in
response to any Notice and Questionnaire delivered by a Holder the Securities of
such Holder to the extent that such Holder fails to furnish such information
within ten (10) Business Days after the Company makes such request. Each Holder
delivering a Notice and Questionnaire agrees to advise the Company promptly in
the event that any of the information contained in its Notice and Questionnaire
ceases to be accurate or complete in all material respects.
(m) The Company shall enter into such customary agreements (including,
if requested, an underwriting agreement in customary form) and take all such
other actions, if any, as any Holder shall reasonably request in order to
facilitate the disposition of the Securities pursuant to the Shelf Registration.
(n) The Company shall (i) make reasonably available for inspection
during normal business hours by the Holders, any underwriter participating in
any disposition pursuant to the Shelf Registration Statement and any attorney,
accountant or other agent retained by the Holders or any such underwriter, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with the Shelf Registration Statement, in each
case, as shall be reasonably necessary to enable such persons, to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act;
provided, however, that the foregoing inspection and information gathering shall
be coordinated on behalf of the Initial Purchasers by you and on behalf of the
other parties, by one counsel designated by and on behalf of such other parties
as described in Section 3 hereof.
(o) The Company, if requested by the managing underwriters of an
underwritten offering of Securities covered by the Shelf Registration Statement,
shall cause (i) its counsel to deliver an opinion and updates thereof relating
to the Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof, and dated, in the case of the initial opinion,
the closing of the underwritten offering (it being agreed that the matters to be
covered by such opinion shall include, without limitation but subject to
customary qualifications and exceptions, the due incorporation and good standing
of the Company and its material subsidiaries; the qualification of the Company
and its material subsidiaries to transact business as foreign corporations; the
due authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(m) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
Securities; the absence of material legal or governmental proceedings involving
the Company and its subsidiaries; the absence of governmental approvals required
to be obtained in connection with the Shelf Registration Statement, the offering
and sale of the Securities, or any agreement of the type referred to in Section
2(m) hereof; the compliance as to form in all material respects of the 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, respectively; and, as of the date of the opinion and as of the
effective date of the Shelf Registration
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Statement or most recent post-effective amendment thereto, as the case may be,
the absence, to such counsel's awareness, from the Shelf Registration Statement
and the Prospectus included therein, as then amended or supplemented, and from
any documents incorporated by reference therein, of an untrue statement of a
material fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (in
the case of any such documents, in the light of the circumstances existing at
the time that such documents were filed with the Commission under the Exchange
Act of 1934, as amended (the "EXCHANGE ACT")); (ii) its officers to execute and
deliver all customary documents and certificates and updates thereof requested
by any underwriters of the Securities and (iii) its independent public
accountants and the independent public accountants with respect to any other
entity for which financial information is provided in the Shelf Registration
Statement to provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72.
The obligations set forth in this paragraph (o) shall only be applicable in
connection with underwritten offerings.
(p) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any 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 "RULES") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, the Company will provide reasonable
assistance to such broker-dealer, at such broker-dealer's expense, in complying
with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Shelf Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
reasonably required in order for such broker-dealer to comply with the
requirements of the Rules.
(q) The Company shall use its reasonable best efforts to take all other
steps necessary to effect the registration of the Securities covered by the
Shelf Registration Statement contemplated hereby.
3. Registration Expenses. (a) All expenses incident to the Company's
performance of and compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Company;
(v) all application and filing fees in connection with
listing the Securities on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and
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(vi) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
Notwithstanding anything to the contrary contained herein, the Company shall
have no liability for any underwriters discounts in connection with any
underwritten offering or for any fees payable to the National Association of
Securities Dealers Inc.
(b) In connection with the Shelf Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and the
Holders of Securities covered by the Shelf Registration Statement, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Xxxxxxx Xxxxxxx & Xxxxxxxx unless another firm shall have been designated by the
Holders of a majority in principal amount of the Transfer Restricted Securities
then covered by the Shelf Registration Statement (provided that Holders of
Common Stock issued upon the conversion of the Initial Securities shall be
deemed to be Holders of the aggregate principal amount of Initial Securities
from which such Common Stock was converted) to act as counsel for the Holders in
connection therewith.
4. Indemnification. (a) Each of the Company and the Guarantors jointly
and severally will indemnify and hold harmless each Holder and each person, if
any, who controls such Holder within the meaning of the Securities Act or the
Exchange Act (each Holder, and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement or Prospectus
including any document incorporated by reference therein, or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Shelf
Registration, 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, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company and the Guarantors shall not be liable in any such case to the
extent that such loss, claim, damage or liability arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in the Shelf Registration Statement or Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus relating to the Shelf
Registration in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company or the Guarantors by or
on behalf of such Holder specifically for inclusion therein and (ii) with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to the Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that a prospectus relating to such Securities was required to be
delivered by such Holder under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder results
from the fact that there was not sent or given to such person, at or prior to
the written confirmation of the sale of such Securities to such person, a copy
of the final Prospectus if the Company and the Guarantors had previously
furnished copies thereof to such Holder ; provided further, however, that this
indemnity agreement will be in addition to any liability which the Company and
the Guarantors may otherwise have to such Indemnified Party. Each of the Company
and the Guarantors jointly and severally will also indemnify underwriters, their
officers and directors and each person who controls such underwriters within the
meaning of the Securities Act or the Exchange Act to the same extent as
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provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder, severally and not jointly, will indemnify and hold
harmless the Company, the Guarantors, their officers and directors and each
person, if any, who controls the Company or the Guarantors within the meaning of
the Securities Act or the Exchange Act from and against any losses, claims,
damages or liabilities or any actions in respect thereof, to which the Company
or the Guarantors or any such controlling person may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the Shelf
Registration Statement or Prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to the Shelf Registration, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company or
the Guarantors by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, the Company and the Guarantors for any
legal or other expenses reasonably incurred by the Company, the Guarantors or
any such controlling person in connection with investigating or defending any
loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company, the Guarantors or any of their controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 4
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may 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 the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, 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) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above in such proportion as is appropriate to reflect the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that 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 the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Guarantors on the one hand or such
8
Holder or such other indemnified party, as the case may be, on the other, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision of this
Section 4(d), the Holders shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to the Shelf Registration Statement exceeds the
amount of damages which such Holders have 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. For purposes
of this paragraph (d), each person, if any, who controls such indemnified party
within the meaning of the Securities Act or the Exchange Act shall have the same
rights to contribution as such indemnified party and each person, if any, who
controls the Company or the Guarantors within the meaning of the Securities Act
or the Exchange Act shall have the same rights to contribution as the Company
and the Guarantors.
(e) The agreements contained in this Section 4 shall survive the sale
of the Securities pursuant to the Shelf Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
5. Additional Interest Under Certain Circumstances. (a) Additional
interest (the "ADDITIONAL INTEREST") with respect to the affected Securities
(but only for so long as they constitute Transfer Restricted Securities) shall
be assessed as follows if any of the following events occur (each such event in
clauses (i) through (iii) below being herein called a "REGISTRATION DEFAULT"):
(i) the Shelf Registration Statement has not been filed with
the Commission by the 60th day after the first date of original
issuance of the Initial Securities;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission by the 180th day after the first date of
original issue of the Initial Securities;
(iii) the Company fails with respect to a Holder that supplies
a properly completed Notice and Questionnaire to the Company to amend
or supplement the Shelf Registration Statement in a timely manner in
order to name such Holder as a selling securityholder; and
(iv) the Shelf Registration Statement is declared effective by
the Commission but (A) the Shelf Registration Statement thereafter
ceases to be effective or (B) the Shelf Registration Statement or the
Prospectus ceases to be usable in connection with resales of Transfer
Restricted Securities (as defined below) during the periods specified
herein (other than pursuant to Section 1(d) hereof and other than
during Deferral Periods) and (1) the Company fails to cure the
Registration Default within ten (10) Business Days by a post-effective
amendment or a report filed pursuant to the Exchange Act or (2) if
applicable, the Deferral Period exceeds 45 days in any 90 day period or
90 days in any 12-month period, as the case may be.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission .
Additional Interest shall accrue daily on the affected Securities that
constitute Transfer Restricted Securities over and above the interest set forth
in the title of the Notes from and including the date on which any such
Registration Default shall occur to, but excluding, the date on which all such
Registration Defaults have
9
been cured, for the Notes at a rate of 0.50% per annum calculated on the basis
of the accreted value of the Notes (the "ADDITIONAL INTEREST RATE") and, if
applicable, on an equivalent basis per share of Common Stock issued in respect
of the Notes (subject to adjustment in the case of stock splits, stock
recombinations, stock dividends and the like), with the holders of such Common
Stock being deemed to be holders of the aggregate principal amount of Initial
Securities from which such Common Stock was converted. Except as set forth
above, we will have no other liabilities for monetary damages with respect to a
failure to perform our registration obligations.
(b) A Registration Default referred to in Section 5(a)(iii) hereof
shall be deemed not to have occurred and be continuing in relation to the Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to the Shelf Registration Statement to incorporate financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related Prospectus or (y) other material events, with respect to the Company
that would need to be described in such Shelf Registration Statement or the
related Prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement the Shelf Registration
Statement and related Prospectus to describe such events as required by
paragraph 2(b) hereof; provided, however, that in any case if such Registration
Default occurs for a continuous period in excess of 30 days, Additional Interest
shall be payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section 5(a)
will be payable in cash on the regular interest payment dates with respect to
the Initial Securities which would apply in the event the Company had exercised
its option to convert the Initial Securities to cash payment obligations
following the occurrence of a Tax Event (as defined in the Indenture relating to
the Initial Securities). The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest Rate by the accreted principal
amount of the Transfer Restricted Securities, further multiplied by a fraction,
the numerator of which is the number of days such Additional Interest Rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i) the
date on which such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement or (ii)
the date on which such Security is distributed to the public pursuant to Rule
144 or any successor provision under the Securities Act or is saleable pursuant
to Rule 144(k) under the Securities Act or any successor provision.
6. Rules 144 and 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time the Company is not required to file
such reports, it will, upon the request of any Holder, make publicly available
other information so long as necessary to permit sales of their securities
pursuant to Rules 144 and 144A. The Company covenants that it will take such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable such Holder to sell Transfer Restricted Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company will provide a copy of this Agreement to prospective
purchasers of Securities identified to the Company by the Initial Purchasers
upon request. Upon the request of any Holder, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 6 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
7. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by the Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the
10
holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering (provided that holders of Common
Stock issued upon conversion of the Initial Securities shall not be deemed
holders of Common Stock, but shall be deemed to be holders of the aggregate
principal amount of Initial Securities from which such Common Stock was
converted).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably 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.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, except by the Company and the written
consent of the holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents
(provided that holders of Common Stock issued upon conversion of Initial
Securities shall not be deemed holders of Common Stock, but shall be deemed to
be holders of the aggregate principal amount of Initial Securities from which
such Common Stock was converted). Without the consent of the Holder of a Initial
Security, however, no modification may change the provisions relating to the
payment of Additional Interest with respect to such Initial Security.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxx
(3) if to the Company, at its address as follows:
11
Xxxx Corporation
00000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
with a copy to:
Winston & Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(d) Third Party Beneficiaries. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(e) Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
By the execution and delivery of this Agreement, the Issuer
and each of the Guarantors submits to the nonexclusive jurisdiction of any
federal or state court in the State of New York.
(j) Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
is required hereunder, Securities held by the Company or its affiliates (other
than subsequent Holders of Securities if such subsequent Holders are deemed to
be affiliates solely by reason of their holdings of such Securities) shall not
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
12
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the several Initial Purchasers, the Issuer and the Guarantors in
accordance with its terms.
Very truly yours,
XXXX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
.................................
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief Financial
Officer
XXXX OPERATIONS CORPORATION
By: /s/ Xxxxxx X. XxXxxxxx
.................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President, Secretary and General Counsel
XXXX CORPORATION AUTOMOTIVE HOLDINGS
By: /s/ Xxxxxx X. XxXxxxxx
.................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Secretary
XXXX SEATING HOLDINGS CORP. #50
By: /s/ Xxxxxx X. XxXxxxxx
.................................
Name: Xxxxxx X. XxXxxxxx
Title: Secretary and General Counsel
XXXX CORPORATION XXXX AND INTERIORS
By: /s/ Xxxxxx X. XxXxxxxx
.................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Secretary
13
XXXX CORPORATION AUTOMOTIVE SYSTEMS
By: /s/ Xxxxxx X. XxXxxxxx
..................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President and Secretary
LEAR TECHNOLOGIES, LLC
By: /s/ Xxxxx X. Xxxxxxxx
..................................
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Chief Financial
Officer - Xxxx Corporation
LEAR MIDWEST AUTOMOTIVE, LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. XxXxxxxx
..................................
Name: Xxxxxx X. XxXxxxxx
Title: Vice President, Secretary and General Counsel
LEAR AUTOMOTIVE (XXXX) SPAIN S.L.
By: /s/ Xxxxxx X. XxXxxxxx
..................................
Name: Xxxxxx X. XxXxxxxx
Title: Power of Attorney
14
XXXX CORPORATION MEXICO, S.A. DE C.V.
By: /s/ Xxxxxx X. XxXxxxxx
..............................
Name: Xxxxxx X. XxXxxxxx
Title: Power of Attorney
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/
------------------------------
Name:
Title:
Acting on behalf of itself
and as the Representative
of the several Initial Purchasers
15
