EXHIBIT 4.16
EXECUTION COPY
================================================================================
$205,000,000 9.625% Senior Notes due 2012
REGISTRATION RIGHTS AGREEMENT
Dated as of February 14, 2003
by and among
MDP ACQUISITIONS PLC,
MDCP ACQUISITIONS I
and
DEUTSCHE BANK AG LONDON
and
XXXXXXX XXXXX INTERNATIONAL
================================================================================
This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of February 14, 2003, by and among MDP Acquisitions plc, a public
limited company incorporated under the laws of Ireland (the "Company"), MDCP
Acquisitions I, an unlimited public company incorporated under the laws of
Ireland (the "GUARANTOR" and together with the Company, the "ISSUERS") and
Deutsche Bank AG London and Xxxxxxx Xxxxx International, as the initial
purchasers (each an "INITIAL PURCHASER" and, collectively, the "INITIAL
PURCHASERS"), each of whom has agreed to purchase the Company's 9.625% Senior
Notes due 2012 in aggregate principal amount of $205,000,000 (the "SERIES A
NOTES") pursuant to the Purchase Agreement.
This Agreement is made pursuant to the Purchase Agreement, dated February
11, 2003 (the "PURCHASE AGREEMENT"), by and among the Issuers and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Series A
Notes, the Issuers have agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 5 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture, dated September 30, 2002 (and as
amended on February 14, 2003), by and among the Issuers and Deutsche Bank Trust
Company Americas, as Trustee (the "TRUSTEE"), relating to the Series A Notes and
the Series B Notes (as defined in Section 1 herein) (the "DOLLAR INDENTURE").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement; the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the City
of New York on which banks are authorized or ordered to close.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for purposes
of this Agreement upon the occurrence of (a) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the Series B
Notes to be issued in the Exchange Offer, (b) the maintenance of such Exchange
Offer Registration Statement continuously effective and the keeping of such
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) hereof and (c) the delivery by the Company to (i) the
Dollar Book-entry Depositary (as defined in the Dollar Deposit and Custody
Agreement) of the Series B Notes (in the case of notes in bearer form) or (ii)
the Registrar (as defined in the Dollar Indenture) of the
2
Series B Notes to be registered (in the case of notes in definitive form), in
each case in the same aggregate principal amount as the aggregate principal
amount of Series A Notes tendered by the Holders thereof pursuant to the
Exchange Offer.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A Notes that are tendered by such Holders in connection with such
exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
GUARANTOR: The Guarantor defined in the preamble hereto and any Person
which becomes a guarantor of Notes after the date hereof pursuant to the terms
of the Dollar Indenture.
HOLDER: As defined in Section 2 hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDEMNIFIED PERSON: As defined in Section 8(c) hereof.
INDEMNIFYING PERSON: As defined in Section 8(c) hereof.
LIQUIDATED DAMAGES: As defined in Section 5 hereof.
NOTES: Series A Notes and Series B Notes (including guarantees thereof by
the Guarantor).
PERSON: An individual, partnership, limited liability company,
corporation, trust, unincorporated organization, or a government or agency or
political subdivision thereof.
PRIVATE EXCHANGE: As defined in Section 3(c) hereof.
PRIVATE EXCHANGE NOTES: As defined in Section 3(c) hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
3
REGISTRATION STATEMENT: Any registration statement of the Issuers
relating to (a) an offering of any Series B Notes (including guarantees thereof
by the Guarantors) pursuant to an Exchange Offer or (b) the registration for
resale of Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) that is filed pursuant to the provisions of this
Agreement and (ii) including the Prospectus included therein, all amendments and
supplements thereto (including post effective amendments) and all exhibits and
material incorporated by reference therein.
RULE 144: Rule 144 promulgated under the Act.
SERIES B NOTES: The Company's U.S. dollar-denominated 9.625% Series B
Senior Notes due 2012 to be issued pursuant to the Dollar Indenture: (i) in the
Exchange Offer or (ii) as contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
TRANSFER RESTRICTED SECURITIES: Each Note, until the earliest to occur of
(a) the date on which such Note is exchanged in an Exchange Offer and entitled
to be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) the date on which such Note has
been disposed of in accordance with a Shelf Registration Statement, (c) the date
on which such Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by an Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act.
SECTION 2. HOLDERS
In this agreement, "HOLDER" means (i) for so long as the Notes are
represented by Global Notes (as defined in the Dollar Indenture), the bearer
thereof which shall initially be the Dollar Book-Entry Depositary (as defined in
the Dollar Deposit and Custody Agreement) and (ii) in the event that Definitive
Notes (as defined in the Dollar Indenture) are issued, the Person in whose name
a Note is registered on the Registrar's books.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law or policy of the Commission (after the procedures set forth in
Section 6(a)(i) below have been complied with), the Issuers shall use all
commercially reasonable efforts to (i) cause the Exchange Offer Registration
Statement to be filed with the Commission on or prior to the date that is 90
days after the Closing Date (such 90th day being the "FILING DEADLINE"), (ii)
cause such Exchange Offer Registration Statement to become effective on or prior
to the date that is 180 days after the Closing Date (such 180th day being the
"EFFECTIVENESS DEADLINE"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if
4
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification of the
Series B Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, use all
commercially reasonable efforts to commence and Consummate the Exchange Offer
within 30 days. The Exchange Offer shall be on the appropriate form permitting
registration of the Series B Notes to be offered in exchange for the Series A
Notes that are Transfer Restricted Securities and to permit resales of Series B
Notes by any Broker-Dealer that tendered into the Exchange Offer for Series A
Notes that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A Notes
acquired directly from the Company or any of its Affiliates) as contemplated by
Section 3(c) below.
(b) The Issuers shall use all commercially reasonable efforts to cause
the Exchange Offer Registration Statement to be effective continuously, and
shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer, PROVIDED, HOWEVER, that in no event shall such period be
less than 20 Business Days. The Issuers shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Series B Notes and the guarantees thereof shall be included in the Exchange
Offer Registration Statement. The Issuers shall use all commercially reasonable
efforts to cause the Exchange Offer to be Consummated on or prior to the date
that is 30 Business Days after the Exchange Offer Registration Statement has
become effective, or longer, if required by the federal securities laws.
(c) The Issuers shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that (i) any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from the Company or any Affiliate of the Company),
may exchange such Transfer Restricted Securities pursuant to the Exchange Offer,
however, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Series B
Notes received by such Broker-Dealer in the Exchange Offer and (ii) the
Prospectus contained in the Exchange Offer Registration Statement may be used to
satisfy such prospectus delivery requirement. Such "Plan of Distribution"
section shall also contain all other information with respect to such sales by
such Broker-Dealers that the Commission may require in order to permit such
sales pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Transfer Restricted Securities held by
any such Broker-Dealer, except to the extent required by the Commission as a
result of a change in policy, rules or regulations after the date of this
Agreement.
To the extent necessary to ensure that the Exchange Offer
Registration Statement is available for sales of Series B Notes by
Broker-Dealers, the Issuers agree, in the event either of them receives notice
from a Broker-Dealer within 20 Business Days of the Consummation of the Exchange
Offer that such Broker-Dealer holds Transfer Restricted Securities that were
acquired for the account of such Broker-Dealer as a result of market-making or
similar activities,
5
to use all commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of 180 days from
the day on which the Exchange Offer is Consummated, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto. The Issuers shall
promptly provide sufficient copies of the latest version of such Prospectus to
such Broker-Dealers promptly upon request, and in no event later than two
Business Days after such request, at any time during such period.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Series A Notes acquired by them and having, or which are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, the Company, upon the written request of the Initial
Purchasers simultaneously with the delivery of the Series B Notes in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "PRIVATE EXCHANGE") for such Series A Notes held by the Initial Purchasers
a like principal amount of Notes of the Company, that are substantially
identical in all material respects to the Series B Notes (the "PRIVATE EXCHANGE
NOTES") (and which are issued pursuant to the same indenture as the Series B
Notes) except for the placement of a restrictive legend on such Private Exchange
Notes. The Private Exchange Notes shall bear the same CUSIP number, if any, ISIN
number and Common Code as the Series B Notes to the extent permitted by the
CUSIP Service Bureau of Standard & Poor's and other applicable organizations.
Interest on the Series B Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or if no interest has been paid on the
Notes from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in New York, New York, which may be either the Trustee or
an affiliate of the Trustee;
(3) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York City time, on the last business day on
which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Series A Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
6
(2) deliver to the Trustee or Authenticating Agent (as defined
in the Dollar Indenture) for cancellation all Series A Notes so accepted
for exchange; and
(3) cause each Trustee promptly to authenticate and deliver to
each Holder of the Series A Notes, Series B Notes or Private Exchange
Notes, as the case may be, in global form in aggregate principal amount
equal to the respective Series A Notes so accepted for exchange, as
further set forth in the Dollar Indenture.
The Series B Notes and the Private Exchange Notes may be issued
under (i) the Dollar Indenture or (ii) an indenture substantially identical in
all material respects to the Dollar Indenture which in either event shall
provide that (1) the Series B Notes shall not be subject to the transfer
restrictions set forth in the Dollar Indenture and (2) the Private Exchange
Notes shall be subject to the transfer restrictions set forth in the Dollar
Indenture. The Dollar Indenture or such indenture substantially identical in all
material respects to the Dollar Indenture shall provide that the Series B Notes,
Private Exchange Notes and Series A Notes shall vote and consent together on all
matters as one class and that none of the Series B Notes, Private Exchange Notes
or Notes will have the right to vote or consent as a separate class on any
matter.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Exchange Offer is not permitted by
applicable law or policy of the Commission (after the Issuers have complied with
the procedures set forth in Section 6(a)(i) below) or (ii) any Holder of
Transfer Restricted Securities shall notify the Company in writing within 20
Business Days following the Consummation of the Exchange Offer that (A) upon
advice of counsel such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not resell the Series
B Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Notes acquired directly from
the Company or any of its Affiliates, then the Issuers shall:
(x) use all commercially reasonable efforts to cause to be filed, on
or prior to 60 days after the earlier of (i) the date on which the Company
determines that the Exchange Offer Registration Statement cannot be filed as a
result of clause (a)(i) above and (ii) the date on which the Company receives
the notice specified in clause (a)(ii) above (such earlier date, the "FILING
DEADLINE"), a shelf registration statement pursuant to Rule 415 under the Act
(which may be an amendment to the Exchange Offer Registration Statement (the
"SHELF REGISTRATION STATEMENT")), relating to all Transfer Restricted Securities
of Holders which shall have provided the information required pursuant to
Section 4(b) hereof, provided, however, that nothing in this section 4(a)(x)
shall require filing of a Shelf Registration Statement prior to the Filing
Deadline for an Exchange Offer Registration Statement; and
(y) use all commercially reasonable efforts to cause such Shelf
Registration Statement to become effective on or prior to 120 days after the
Filing Deadline (such 120th day the "EFFECTIVENESS DEADLINE").
7
If, after the Issuers have filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law or
policy of the Commission (i.e., clause (a)(i) above), then the filing of the
Exchange Offer Registration Statement shall be deemed to satisfy the
requirements of clause (x) above; PROVIDED that, in such event, the Issuers
shall remain obligated to meet the Effectiveness Deadline set forth in clause
(y).
The Issuers shall use all commercially reasonable efforts to keep
any Shelf Registration Statement required by this Section 4(a) continuously
effective, supplemented and amended as required by and subject to the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) (and the other Notes required to be
registered therein pursuant to Section 6(b) hereof) and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the Closing Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information (it being understood that Liquidated Damages shall cease to accrue
for the benefit of any Holder who fails to provide such information). Each
selling Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading. The Issuers shall not be obligated to
supplement such Shelf Registration Statement after it has been declared
effective by the Commission more than four times per quarterly period to reflect
additional Holders.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not filed
with the Commission on or prior to the applicable Filing Deadline, (ii) any such
Registration Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) the Exchange Offer has not
been Consummated within 30 Business Days after the Exchange Offer Registration
Statement is first declared effective by the Commission or (iv) subject to
Section 6(c)(i), any Registration Statement required by this Agreement is filed
and declared effective but thereafter ceases to be effective or fails to be
usable for its intended purpose without being succeeded immediately within 5
Business days by a post-effective amendment to such Registration Statement that
cures such failure and that is itself declared effective immediately (each such
event referred to in clauses (i) through (iv), a "REGISTRATION
8
DEFAULT"), then, subject to Section 4(b), the Issuers hereby jointly and
severally agree to pay to each Holder of Transfer Restricted Securities affected
thereby liquidated damages ("LIQUIDATED DAMAGES"), with respect to the first
90-day period immediately following the occurrence of the first Registration
Default in an amount equal to a per annum rate of 0.25% on the principal amount
of Transfer Restricted Securities held by such Holder. The amount of Liquidated
Damages described in the preceding sentence shall increase by an additional per
annum rate of 0.25% with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of Liquidated
Damages for all Registration Defaults of 1.00% PER ANNUM on the principal amount
of Notes constituting Transfer Restricted Securities; PROVIDED that the Issuers
shall in no event be required to pay Liquidated Damages for more than one
Registration Default at any given time. Notwithstanding anything to the contrary
set forth herein, (1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (i)
above, (2) upon the effectiveness of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (ii)
above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above,
or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
Liquidated Damages payable with respect to the Transfer Restricted Securities as
a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Dollar
Indenture, on each Interest Payment Date, as more fully set forth in the Dollar
Indenture and the Notes. All obligations of the Issuers set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Issuers shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use all commercially reasonable efforts to effect such
exchange and to permit the resale of Series B Notes by any Broker-Dealer that
tendered in the Exchange Offer Series A Notes that such Broker-Dealer acquired
for its own account as a result of its market making activities or other trading
activities (other than Series A Notes acquired directly from the Company or any
of its Affiliates) being sold in accordance with the intended method or methods
of distribution thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the Company
raises a substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Issuers hereby agree to seek a
no-action letter or other favorable decision from the Commission allowing
the Issuers to Consummate an Exchange Offer for such Transfer Restricted
Securities. The Issuers hereby agree to pursue the issuance of such a
decision to the Commission staff level. In connection with the foregoing,
the Issuers hereby agree to take all such
9
other actions as may be requested by the Commission or otherwise required
in connection with the issuance of such decision, including without
limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker-Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange Offer,
a written representation to the Issuers (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Company,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the Series B Notes to be issued in the Exchange Offer and
(C) it is acquiring the Series B Notes in its ordinary course of
business. Each Holder using the Exchange Offer to participate in a
distribution of the Series B Notes hereby acknowledges and agrees that,
if the resales are of Series B Notes obtained by such Holder in exchange
for Notes acquired directly from the Company or an Affiliate thereof, it
(1) could not, under Commission policy as in effect on the date of this
Agreement, rely on the position of the Commission enunciated in XXXXXX
XXXXXXX AND CO., INC. (available June 5, 1991) and EXXON CAPITAL HOLDINGS
CORPORATION (available May 13,1988), as interpreted in the Commission's
letter to SHEARMAN & STERLING dated July 2, 1993, and similar no-action
letters (including, if applicable, any no-action letter obtained pursuant
to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale transaction
must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers shall provide a supplemental letter to the
Commission (A) stating that the Issuers are registering the Exchange
Offer in reliance on the position of the Commission enunciated in EXXON
CAPITAL HOLDINGS CORPORATION (available May 13, 1988), XXXXXX XXXXXXX AND
CO., INC. (available June 5, 1991) as interpreted in the Commission's
letter to SHEARMAN & STERLING dated July 2, 1993, and, if applicable, any
no-action letter obtained pursuant to clause (i) above, (B) including a
representation that the Issuers have not entered into any arrangement or
understanding with any Person to distribute the Series B Notes to be
received in the Exchange Offer and that, to the best of the Issuers'
information and belief, each Holder participating in the Exchange Offer
is acquiring the Series B Notes in its ordinary course of business and
has no arrangement or understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange Offer and (C)
any other undertaking or representation required by the Commission as set
forth in any no-action letter obtained pursuant to clause (i) above, if
applicable.
10
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Issuers shall comply with all the provisions of
Section 6(c) below and shall use all commercially reasonable efforts to effect
such registration to permit the sale of the Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof
(as indicated in the information furnished to the Company pursuant to Section
4(b) hereof), and pursuant thereto the Issuers will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement
and any related Prospectus required by this Agreement, the Issuers shall:
(i) use all commercially reasonable efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain an untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein (in light of
the circumstances in which they were made) not misleading or (B) not to
be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Issuers shall file
promptly an appropriate amendment to such Registration Statement curing
such defect, and, if Commission review is required, use all commercially
reasonable efforts to cause such amendment to be declared effective as
soon as practicable. Notwithstanding the foregoing, if the Board of
Directors of the Company determines in good faith that it is in the best
interests of the Issuers not to disclose the existence of facts
surrounding any proposed or pending material corporate transaction or
other material development involving the Issuers, the Issuers may allow
the Shelf Registration to fail to be effective or the Prospectus
contained therein to be unusable as a result of such nondisclosure for up
to 60 days in any year during the two-year period of effectiveness
required by Section 4 hereof and provided that a Registration Default
would not occur during such period.
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply fully with Rules 424, 430A and 462, as applicable,
under the Act in a timely manner; and comply with the provisions of the
Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof set
forth in such Registration Statement or supplement to the Prospectus;
(iii) with respect to a Shelf Registration Statement, advise the
selling Holders promptly and, if requested by such Persons, confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement
or post-effective amendment has been filed,
11
and, with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B)
of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or
changes in the Registration Statement in order to make the statements
therein not misleading, or that requires the making of any additions to
or changes of the Prospectus in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Issuers shall use all commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
is the light of the circumstances under which they were made, not
misleading;
(v) furnish to the Initial Purchasers and with respect to a
Shelf Registration Statement, each selling Holder named in any
Registration Statement or Prospectus in connection with such sale, if
any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review
and comment of such Holders in connection with such sale, if any, for a
period of five Business Days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which the selling Holders of the
Transfer Restricted Securities covered by such Registration Statement in
connection with such sale, if any, shall reasonably object within five
Business Days after the receipt thereof. A selling Holder shall be deemed
to have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission or
fails to comply with the applicable requirements of the Act;
12
(vi) with respect to a Shelf Registration Statement, promptly
prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of
such document to the selling Holders, upon the reasonable request of such
selling Holders, in connection with such sale, if any, and make the
Issuers' representatives available to discuss customary due diligence
matters;
(vii) with respect to a Shelf Registration Statement, subject to
appropriate confidentiality agreements being entered into, make available
at reasonable times for inspection by the selling Holders participating
in any disposition pursuant to such Registration Statement and any
attorney or accountant retained by such selling Holders, all financial
and other records, pertinent corporate documents of the Issuers and cause
the Issuers' officers, directors and employees to supply all information
reasonably requested by any such selling Holder, attorney or accountant
in connection with such Registration Statement or any post effective
amendment thereto subsequent to the filing thereof and prior to its
effectiveness;
(viii) with respect to a Shelf Registration Statement, if
requested by any selling Holders in connection with such sale, if any,
promptly include in any Registration Statement or Prospectus, pursuant to
a supplement or post-effective amendment if necessary, such information
as such selling Holders may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be Included in such Prospectus supplement or post-effective
amendment;
(ix) with respect to a Shelf Registration Statement, furnish to
each selling Holder in connection with such sale, if any, without charge,
at least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) with respect to a Shelf Registration Statement, deliver to
each selling Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Issuers hereby
consent to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) with respect to a Shelf Registration Statement, upon the
request of Holders who collectively hold an aggregate principal amount of
Notes in excess of 20% of the amount of outstanding Transfer Restricted
Securities (the "Requesting Holders"), enter into an underwriting
agreement and make such representations and warranties and take all such
other actions in connection therewith as may be reasonable and customary
in underwritten offerings in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
applicable Registration Statement contemplated by
13
this Agreement as may be reasonably requested by the Requesting Holders
in connection with any sale or resale pursuant to any applicable Shelf
Registration Statement; provided, however, that the Issuers shall not be
obligated to enter into any such underwriting agreement on more than four
occasions. In such connection, the Issuers shall:
(A) upon the reasonable request of the Requesting
Holders, furnish (or in the case of paragraph (2) below, use all
commercially reasonable efforts to cause to be furnished) to each
Requesting Holder, upon the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated such date, signed on behalf
of the Company and each Guarantor by (x) the President or
any Vice President and (y) a principal financial or
accounting officer of the Company and such Guarantor,
confirming, as of the date thereof, the matters, to the
extent applicable, set forth in paragraphs (a) and (b) of
Section 6 of the Purchase Agreement and such other similar
matters as such Holders may reasonably request; and
(2) a customary comfort letter or letters, dated the
date of effectiveness of the Shelf Registration Statement,
from the Company's independent accountants, in the
customary form and covering matters of the type
customarily covered in comfort letters to underwriters in
connection with underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 6(f) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may
be reasonably requested by the Requesting Holders to evidence
compliance with clause (A) above and with any customary conditions
contained in any agreement entered into by the Issuers pursuant to
this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; PROVIDED, HOWEVER, that none of the
Issuers shall be required to register or qualify as a foreign corporation
where such Issuer is not now so qualified or to take any action that
would subject such Issuer to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where such Issuer is not now
so subject;
(xiii) issue, upon the request of any Holder of Series A Notes
covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Notes having an aggregate principal amount equal to
the aggregate principal amount of Series A Notes surrendered to the
Company by such Holder in exchange therefor or being sold by such
14
Holder, such Series B Notes to be registered in the name of such Holder
or in the name of the purchaser(s) of such Series B Notes; in return, the
Series A Notes held by such Holder shall be surrendered to the Company
for cancellation;
(xiv) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
and to register such Transfer Restricted Securities in such denominations
and such names as the selling Holders may request at least two Business
Days prior to such sale of Transfer Restricted Securities which are in a
form eligible for deposit;
(xv) provide an ISIN number and CUSIP number for all Transfer
Restricted Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Dollar Indenture with printed certificates for the
Transfer Restricted Securities which are in a form eligible for deposit;
(xvi) otherwise use all commercially reasonable efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to their security holders with regard to any
applicable Registration Statement, as soon as practicable, a consolidated
earnings statement meeting the requirements of Rule 158 (which need not
be audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in paragraph
(c) of Rule 158 under the Act);
(xvii) unless the rating in effect for the Series A Notes is
equally applicable and in effect for the Series B Notes and the Transfer
Restricted Securities, use its best efforts to cause the Transfer
Restricted Securities covered by a Registration Statement or the Series B
Notes, as the case may be, to be rated with the appropriate rating
agencies;
(xviii) make an application to list the Series B Notes on the
Luxembourg Stock Exchange and to use its best efforts to have the Series
B Notes admitted to trading on the Luxembourg Stock Exchange as promptly
as practicable and thereafter maintain such listing;
(xix) cause the Dollar Indenture to be qualified under the TIA
not later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee to effect such changes to the Dollar Indenture as may be
required for such Dollar Indenture to be so qualified in accordance with
the terms of the TIA; and execute and use all commercially reasonable
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Dollar Indenture
to be so qualified in a timely manner; and
15
(xx) provide promptly to each Holder, upon written request,
each document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) RESTRICTIONS ON SELLING HOLDERS. With respect to a shelf
registration statement, each selling Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referred to in Section
6(c)(iii)(C) or any notice from the Company of the existence of any fact of the
kind described in Section 6(c)(i) or Section 6(c)(iii)(D) hereof (in each case,
a "SUSPENSION NOTICE"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement 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 Series B Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Issuers; (v) all application and filing fees in connection with listing the
Series B Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; (vi) all fees and disbursements of
independent certified public accountants of the Issuers (including the expenses
of any comfort letters required by or incident to such performance); and (vii)
rating agency fees, if any, and any fees associated with making the Private
Exchange Notes eligible for trading through the Depository Trust Company
("DTC").
The Company will, in any event, bear its and the Guarantor's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), and the
expenses of any Person retained by the Issuers.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers will reimburse the
Initial Purchasers and the Holders of
16
Transfer Restricted Securities being tendered in the Exchange Offer and/or
resold pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Xxxxxxx Xxxxxxx & Xxxxxxxx, unless another firm
shall be chosen by the Holders of a majority in principal amount of the Transfer
Restricted Securities for whose benefit such Registration Statement is being
prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuers, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls any Holder
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act (any of the persons referred do in this clause (ii) being hereinafter
referred to as a "controlling person") and (iii) the respective officers,
directors, partners, employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "INDEMNIFIED HOLDER") from and against any and
all losses, claims, damages and liabilities (including without limitation the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto if
the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any of the Holders furnished
in writing to the Company by such Holder expressly for use therein.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Issuers, their directors,
their officers and each person who controls the Issuers within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act, to the same
extent as the foregoing indemnity from the Issuers to each of the Indemnified
Holders, but only with reference to information relating to such Indemnified
Holder furnished in writing to the Company by such Indemnified Holder expressly
for use in any Registration Statement or any amendment or supplement thereto.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to Section 8(a)
or 8(b) hereof, such person (the "INDEMNIFIED PERSON") shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in
writing, and the Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others the Indemnifying Person may
designate in such proceeding and shall pay the fees and expenses of such counsel
related to such proceeding. In any such proceeding, any Indemnified Person shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
17
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel) for
all Indemnified Persons, and that all such reasonable fees and expenses shall be
reimbursed as they are incurred. Any such separate firm for the Indemnified
Holders shall be designated in writing by a majority of the Indemnified Holders
and any such separate firm for the Issuers, their directors, their officers and
such control persons shall be designated in writing by the Company. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify any Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. No Indemnifying Person shall, without the
prior written consent of the Indemnified Person, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
(d) If the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the one
hand and the Indemnified Holder on the other hand from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuers on the one hand and the Indemnified Holder on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Issuers on the one hand and the
Indemnified Holder on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Issuers and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Holders or the Issuers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other
18
expenses reasonably incurred by such Indemnified Person in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, in no event shall a Holder or its related
Indemnified Holders be required to contribute any amount in excess of the amount
by which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds the sum of
(A) the amount paid by such Holder for such Transfer Restricted Securities PLUS
(B) the amount of any damages that such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of the Transfer Restricted
Securities held by each Holder hereunder and not joint. The Issuers' obligations
to contribute pursuant to this Section 8 are joint and several.
The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 9. RULE 144A AND OTHER INFORMATION
The Issuers hereby agree with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in which
the Issuers (i) are not subject to Section 13 or 15(d) of the Exchange Act, to
make available within a reasonable period of time to the Initial Purchasers and,
upon written request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A and (ii) are subject to
Section 13 or 15(d) of the Exchange Act, to make all filings required thereby in
a timely manner in order to permit resales of Transfer Restricted Securities
pursuant to Rule 144.
SECTION 10. UNDERWRITTEN REGISTRATIONS
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Issuers.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
19
SECTION 11. MISCELLANEOUS
(a) REMEDIES. The Issuers acknowledge and agree that any failure by
the Issuers to comply with their obligations under Sections 3 and 4 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuers' obligations under Sections 3 and 4
hereof. The Issuers further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Issuers will not, on or after the
date of this Agreement, enter into any agreement with respect to their
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 Issuers' securities
under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose securities are being tendered pursuant to the Exchange Offer,
and that does not affect directly or indirectly the rights of other Holders
whose securities are not being tendered pursuant to such Exchange Offer, may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities subject to such Exchange Offer.
(d) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers, 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 its rights or the rights of Holders hereunder.
(e) ACKNOWLEDGEMENT. It is hereby agreed and acknowledged by the
Issuers that the Series B Notes to be issued pursuant to this agreement
represent the same debt already in existence in respect of the Series A Notes.
(f) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
20
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Dollar Indenture, with a copy to the Registrar
under the Dollar Indenture; and
(ii) if to the Issuers:
MDP Acquisitions plc
Xxxxxx Xxx Xxxxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
Xxxxxxx
Attention: Xxxxxxxx Limited
With a copy to;
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx Xxxxx
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telescoped; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Dollar Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to the Initial
Purchasers in the form attached hereto as Exhibit A.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; PROVIDED, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms hereof or of the
Purchase Agreement or the Dollar Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities in any manner, whether by operation
of law or otherwise, such Transfer Restricted Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
21
(h) 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.
(i) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE;
WAIVER. To the fullest extent permitted by applicable law, the Issuers
irrevocably submit to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in the City of Xxx Xxxx, Xxxxxx xxx Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America, in any suit or proceeding based on or
arising under this Agreement, and irrevocably agree that all claims in respect
of such suit or proceeding may be determined in any such court. The Issuers, to
the fullest extent permitted by applicable law, irrevocably and fully waive the
defense of an inconvenient forum to the maintenance of such suit or proceeding
and hereby irrevocably designate and appoint National Registered Agents, Inc.
(the "AUTHORIZED AGENT"), for the later of a period of ten years or until such
time as no Notes are outstanding as its authorized agent upon whom process may
be served in any such suit or proceeding. The Issuers represent that they have
separately notified the Authorized Agent of such designation and appointment and
that the Authorized Agent has accepted the same in writing. The Issuers hereby
irrevocably authorize and direct its Authorized Agent to accept such service.
The Issuers further agree that service of process upon its Authorized Agent and
written notice of said service to the Company or the Guarantor, as the case may
be, mailed by first class mail or delivered to its Authorized Agent shall be
deemed in every respect effective service of process upon the Company or the
Guarantor, as the case may be, in any such suit or proceeding. Nothing herein
shall affect the right of any person to serve process in any other manner
permitted by law. The Issuers agree that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other lawful manner. Notwithstanding the
foregoing, any action against the Company or the Guarantor arising out of or
based on this Agreement or the transactions contemplated hereby may also be
instituted by any of the Initial Purchasers, their respective officers and
employees or any person who controls any of the Initial Purchasers within the
meaning of the Securities Act in any competent court in Ireland, and the Issuers
expressly accept the jurisdiction of any such court in any such action.
Each of the Company and the Guarantor irrevocably waive, to the
extent permitted by law, any immunity to jurisdiction to which it may otherwise
be entitled (including, without limitation, 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.
The provisions of this Section 11(j) are intended to be effective
upon the execution of this Agreement without any further action by the Company
or the Initial Purchasers
22
and the introduction of a true copy of this Agreement into evidence shall be
conclusive and final evidence as to such matters.
(l) CURRENCY INDEMNITY. The Issuers shall indemnify each Indemnified
Holder against any loss incurred by it as a result of any judgment or order
being given or made and expressed and paid in a currency (the "JUDGMENT
Currency") other than U.S. dollars and as a result of any variation as between
(i) the rate of exchange at which the U.S. dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in New York, New York at which such Indemnified Holder on the
date of payment of such judgment or order is able to purchase U.S. dollars with
the amount of the Judgment Currency actually received by such Indemnified
Holder. If the U.S. dollars so purchased are greater than the amount originally
due to such Indemnified Holder hereunder, such Indemnified Holder agrees to pay
to the Company an amount equal to the excess of the U.S. dollars so purchased
over the amount originally due to such Indemnified Holder hereunder. The
foregoing shall constitute a separate and independent obligation of the Issuers
and the Indemnified Holders, as the case may be, and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, U.S. dollars.
(m) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(n) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
(o) GUARANTOR OBLIGATIONS. Notwithstanding anything to the contrary in
this Agreement, the parties hereto agree that the Guarantor shall have no
liability hereunder, nor shall any claims hereunder be brought against the
Guarantor, if such Guarantor liability would result in a breach of the Senior
Bank Financing (as defined in the Purchase Agreement).
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
MDP ACQUISITIONS PLC
BY: /s/ XXXX X. XxXXXX
-----------------------------------
Name:
Title:
MDCP ACQUISITIONS I
BY: /s/ XXX X. XXXXXX
-----------------------------------
Name:
Title:
BY: DEUTSCHE BANK AG LONDON
BY: /s/ X. X. Xxxx
-----------------------------------
Name: X. X. Xxxx
Title: M. D.
BY: XXXXXXX XXXXX INTERNATIONAL
BY: /s/ XXXXX XXXXXX
-----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER REGISTRATION STATEMENT
To: Deutsche Bank AG London
Winchester House
1 Great Xxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Attn: Xxxxx Xxxxxxx
Fax: x00 00 0000 0000
From: MDP Acquisitions plc
[Xxxxxx Xxx Xxxxxxxx
Xxxxxxxxx Xxxxxxx
Xxxxxx 0
Xxxxxxx
Attn: -
Fax: x000 0 000 0000]
Re: 9.625% Senior Notes Due 2012
Date: ___________, 200_
For your information only (NO ACTION REQUIRED):
Today, _____________, 200_, we filed [an Exchange Registration
Statement] [a Shelf Registration Statement] with the Securities and Exchange
Commission.
