Exhibit 4(x)
REGISTRATION RIGHTS AGREEMENT
between
XXXXX FARGO & COMPANY
as Issuer,
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED,
XXXXXX XXXXXXX & CO. INCORPORATED
and
XXXXXXX, SACHS & CO.
as Managers of the Initial Purchasers
Dated as of April 15, 2003
REGISTRATION RIGHTS AGREEMENT dated as of April 15, 2003 among Xxxxx
Fargo & Company, a Delaware corporation (the "Company"), Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx,
Sachs & Co. (the "Managers"), as managers of the several initial purchasers (the
"Initial Purchasers") named in the Purchase Agreement dated April 9, 2003 (the
"Purchase Agreement"), between the Company and the Initial Purchasers. In order
to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the beneficial owners (including
the Initial Purchasers) from time to time of the Notes (as defined herein) and
the beneficial owners from time to time of the Underlying Common Stock (as
defined herein) issued upon conversion of the Notes (each of the foregoing a
"Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"Affiliate" means with respect to any specified person, an "affiliate,"
as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning set forth in
Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means the shares of common stock, par value $1-2/3 per
share, of the Company including the Underlying Common Stock.
"Conversion Rate" has the meaning assigned such term in the Indenture.
"Damages Accrual Period" has the meaning set forth in Section 2(e)
hereof.
"Damages Payment Date" means each February 1, May 1, August 1 and
November 1.
"Deferral Notice" has the meaning set forth in Section 3(h) hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline Date" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means the period commencing on the date the
Initial Shelf Registration Statement is declared effective and ending on the
date that all Registrable Securities have ceased to be Registrable Securities.
"Event" has the meaning set forth in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning set forth in Section 2(a) hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture, dated as of April 15, 2003, between the
Company and Citibank, N.A, as trustee, pursuant to which the Notes are being
issued.
"Initial Purchasers" has the meaning set forth in the preamble to this
Agreement.
"Initial Shelf Registration Statement" has the meaning set forth in
Section 2(a) hereof.
"Issue Date" means April 15, 2003.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e)
hereof.
"Managers" has the meaning set forth in the preamble to this Agreement.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notes" means the Floating Rate Convertible Senior Debentures Due 2033
of the Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a completed and signed written notice
delivered to the Company containing substantially the information called for by
the Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum of the Company dated April 9, 2003 relating to the Notes.
"Notice Holder" means, on any date, any Holder that has delivered a
completed and signed Notice and Questionnaire to the Company on or prior to such
date.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"Prospectus" means the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all materials incorporated by reference in such
Prospectus.
"Record Holder" means with respect to any Damages Payment Date relating
to any Notes or Underlying Common Stock as to which any Liquidated Damages
Amount has accrued, the registered holder of such Note or Underlying Common
Stock on the January 15, April 15, July 15 or October 15, as the case may be,
immediately preceding the relevant Damages Payment Date.
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"Registrable Securities" means the Notes until such Notes have been
converted into or exchanged for the Underlying Common Stock and, at all times
subsequent to any such conversion, the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted or
exchanged, and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the earliest
of (i) its effective registration under the Securities Act and resale in
accordance with the Registration Statement covering it, (ii) expiration of the
holding period that would be applicable thereto under Rule 144(k) (without
regard to any affiliate status of the Holder of such security) or (iii) its sale
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act, and (B) as a result of the event or circumstance
described in any of the foregoing clauses (i) through (iii), the legend with
respect to transfer restrictions required under the Indenture is removed or
removable in accordance with the terms of the Indenture or such legend, as the
case may be.
"Registration Statement" means any registration statement of the Company
that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
"Restricted Securities" means "Restricted Securities" as defined in Rule
144.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section 2(a)
hereof.
"Special Counsel" means Sidley Xxxxxx Xxxxx & Xxxx LLP or one such other
successor counsel as shall be specified by the Holders of a majority of all
Registrable Securities, but which may, with the written consent of the Managers
(which shall not be unreasonably withheld), be another nationally recognized law
firm experienced in securities law matters designated by the Company, the
reasonable fees and expenses of which will be paid by the Company pursuant to
Section 5 hereof. Throughout this Agreement, for purposes of determining the
holders of a majority of Registrable Securities in this definition, Holders of
Notes shall be deemed to be the Holders of the number of shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date
the consent is requested.
"Subsequent Shelf Registration Statement" has the meaning set forth in
Section 2(b) hereof.
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"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means Citibank, N.A., the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which the Notes
are convertible or issued upon conversion of the Notes.
Section 2. Shelf Registration. (a) The Company shall prepare and file or
cause to be prepared and filed with the SEC, by the date (the "Filing Deadline
Date") one hundred twenty (120) days after the Issue Date, a Registration
Statement for an offering to be made on a delayed or continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration Statement") registering
the resale from time to time by Holders thereof of all of the Registrable
Securities (the "Initial Shelf Registration Statement"). The Initial Shelf
Registration Statement shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders. The Company shall use its reasonable efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act by the
date (the "Effectiveness Deadline Date") that is one hundred eighty (180) days
after the Issue Date, and to keep the Initial Shelf Registration Statement (or
any Subsequent Shelf Registration Statement) continuously effective under the
Securities Act until the expiration of the Effectiveness Period. At the time the
Initial Shelf Registration Statement is declared effective, each Holder that
became a Notice Holder on or prior to the date ten (10) Business Days prior to
such time of effectiveness shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law. None of the Company's security
holders (other than the Holders of Registrable Securities) shall have the right
to include any of the Company's securities in the Shelf Registration Statement.
(a) If the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Registrable Securities
registered thereunder shall have been resold pursuant thereto or shall have
otherwise ceased to be Registrable Securities), the Company shall use its
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use its
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is practicable after such filing and to keep
such Registration Statement (or subsequent Shelf Registration Statement)
continuously effective until the end of the Effectiveness Period.
(b) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration Statement,
if required by the Securities Act or as necessary to name a Notice Holder as a
selling securityholder pursuant to Section (d) below.
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(c) Each Holder agrees that if such Holder wishes to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
Prospectus, it will do so only in accordance with this Section 2(d) and Section
3(h). Following the date that the Initial Shelf Registration Statement is
declared effective, each Holder wishing to sell Registrable Securities pursuant
to a Shelf Registration Statement and related Prospectus agrees to deliver a
Notice and Questionnaire to the Company. Each Holder who elects to sell
Registrable Securities pursuant to a Shelf Registration Statement agrees, by
submitting a Notice and Questionnaire to the Company, it will be bound by the
terms and conditions of the Notice and Questionnaire and this Agreement. From
and after the date the Initial Shelf Registration Statement is declared
effective, the Company shall before the later of (x) ten (10) Business Days
after such date or (y) fifteen (15) Business Days after the expiration of any
Deferral Period in effect when the Notice and Questionnaire is delivered or put
into effect within ten (10) Business Days of such delivery date:
(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 required document 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 Registrable Securities in accordance
with applicable law and, if the Company shall file a post-effective
amendment to the Shelf Registration Statement, use its reasonable
efforts to cause such post-effective amendment to be declared effective
under the Securities Act by the date (the "Amendment Effectiveness
Deadline Date") that is forty-five (45) days after the date such
post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i), if requested; 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 2(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
3(h). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Registration Statement or related Prospectus and
(ii) the Amendment Effectiveness Deadline Date shall be extended by up to ten
(10) Business Days from the expiration of a Deferral Period (and the Company
shall incur no obligation to pay Liquidated Damages during such extension or
during such Deferral Period) if such Deferral Period shall be in effect on the
Amendment Effectiveness Deadline Date.
(d) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if, other than as permitted
hereunder,
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(i) the Initial Shelf Registration Statement has not been
filed on or prior to the Filing Deadline Date,
(ii) the Initial Shelf Registration Statement has not been
declared effective under the Securities Act on or prior to the
Effectiveness Deadline Date,
(iii) the Company has failed to perform its obligations set
forth in Section 2(d)(i) within the time period required therein,
(iv) any post-effective amendment to a Shelf Registration
Statement filed pursuant to Section 2(d)(i) has not become effective
under the Securities Act on or prior to the Amendment Effectiveness
Deadline Date, or
(v) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant
to Section 3(h) hereof.
Each event described in any of the foregoing clauses (i) through (v) is
individually referred to herein as an "Event." For purposes of this Agreement,
each Event set forth above shall begin and end on the dates set forth in the
table set forth below:
Type of Event by Clause Beginning Date Ending Date
--------------------------- ------------------------------------ ------------------------------------
(i) Filing Deadline Date the date the Initial Shelf
Registration Statement is filed
(ii) Effectiveness Deadline Date the date the Initial Shelf
Registration Statement becomes
effective under the Securities Act
(iii) the date by which the Company is the date the Company performs its
required to perform its obligations obligations set forth in
under Section 2(d)(i) Section 2(d)(i)
(iv) the Amendment Effectiveness Deadline the date the applicable
Date post-effective amendment to a Shelf
Registration Statement becomes
effective under the Securities Act
(v) the date on which the aggregate termination of the Deferral Period
duration of Deferral Periods in any that caused the limit on the
period exceeds the number of days aggregate duration of Deferral
permitted by Section 3(h) Periods to be exceeded
For purposes of this Agreement, Events shall begin on the dates set forth in the
table above and shall continue until the ending dates set forth in the table
above.
Commencing on (and including) any date that an Event has begun and
ending on (but excluding) the next date on which there are no Events that have
occurred and are continuing (a "Damages Accrual Period"), the Company shall pay,
as liquidated damages and not as a penalty, to Record Holders of Registrable
Securities an amount (the "Liquidated Damages Amount") accruing, for each day in
the Damages Accrual Period, (i) in respect of any Note, at a rate per annum
equal to 0.25% for the first 90-day period after the occurrence of an Event and
at a rate per annum equal to 0.50% thereafter of the aggregate principal amount
of the Notes outstanding and (ii) in respect of each share of Underlying Common
Stock at a rate per annum
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equal to 0.25% for the first 90-day period after the occurrence of an Event and
at a rate per annum equal to 0.50% thereafter of an amount equal to $1000
divided by the Conversion Rate in effect on the first day of any such period, as
the case may be; provided that in the case of a Damages Accrual Period that is
in effect solely as a result of an Event of the type described in clause (iii)
or (iv) of the preceding paragraph, such Liquidated Damages Amount shall be paid
only to the Holders (as set forth in the succeeding paragraph) that have
delivered Notices and Questionnaires that caused the Company to incur the
obligations set forth in Section 2(d) the non-performance of which is the basis
of such Event. In calculating the Liquidated Damages Amount on any date on which
no Notes are outstanding, the Conversion Rate and the Liquidated Damages Amount
payable with respect to shares of Common Stock which are Registrable Securities,
shall be calculated as if the Notes were still outstanding. Notwithstanding the
foregoing, no Liquidated Damages Amount shall accrue as to any Registrable
Security from and after the earlier of (x) the date such security is no longer a
Registrable Security and (y) expiration of the Effectiveness Period. The rate of
accrual of the Liquidated Damages Amount with respect to any period shall not
exceed the rate provided for in this paragraph notwithstanding the occurrence of
multiple concurrent Events.
The Liquidated Damages Amount shall accrue from the first day of the
applicable Damages Accrual Period, and shall be payable in cash on each Damages
Payment Date during the Damage Accrual Period to the Record Holders of the
Registrable Securities on the record date immediately preceding the applicable
Damages Payment Date (and on the Damages Payment Date next succeeding the end of
the Damages Accrual Period if the Damage Accrual Period does not end on a
Damages Payment Date to the Record Holders of the Registrable Securities as of
the date that such Damages Accrual Period ends ); provided that any Liquidated
Damages Amount accrued with respect to any Note or portion thereof redeemed by
the Company on a redemption date prior to the Damages Payment Date shall be paid
instead on such redemption date to the Holder who submitted such Note or portion
thereof for redemption; provided further that, in the case of an Event of the
type described in clause (iii) or (iv) of the first paragraph of this Section
2(e), such Liquidated Damages Amount shall be paid only to the Holders entitled
thereto pursuant to such first paragraph by check mailed to the address set
forth in the Notice and Questionnaire delivered by such Holder. The parties
agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which liquidated damages are expressly provided shall
be such liquidated damages. Nothing shall preclude any Holder from pursuing or
obtaining specific performance or other equitable relief with respect to this
Agreement.
All of the Company's obligations set forth in this Section 2(e) that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 9(j)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
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Section 3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, during the Effectiveness
Period, the Company shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof, and
use its reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided that before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto with the SEC (but excluding reports filed with the SEC under the
Exchange Act), furnish to the Initial Purchasers and the Special Counsel of such
offering, if any, copies of all such documents proposed to be filed at least two
(2) Business Days prior to the filing of such Registration Statement or
amendment thereto or Prospectus or supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
applicable period specified in Section 2(a); cause the related Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its reasonable efforts to comply with the provisions of
the Securities Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement during the Effectiveness
Period.
(c) As promptly as practicable give notice to the Notice Holders,
the Initial Purchasers and the Special Counsel, if any, (i) when any Prospectus,
prospectus supplement, Registration Statement or post-effective amendment to a
Registration Statement has been filed with the SEC and, with respect to a
Registration Statement or any post-effective amendment, when the same has been
declared effective, (ii) of any request, following the effectiveness of the
Initial Shelf Registration Statement under the Securities Act, by the SEC or any
other federal or state governmental authority for amendments or supplements to
any Registration Statement or related Prospectus or for additional information
relating to the Shelf Registration Statement, (iii) of the issuance by the SEC
or any other federal or state governmental authority of any stop order
suspending the effectiveness of any Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of, but not the nature of or details concerning,
a Material Event and (vi) of the determination by the Company that a
post-effective amendment to a Registration Statement will be filed with the SEC,
which notice may, at the discretion of the Company (or as required pursuant to
Section 3(h)), state that it constitutes a Deferral Notice, in which event the
provisions of Section 3(h) shall apply.
(d) Use its reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities
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for sale in any jurisdiction in which they have been qualified for sale, in
either case at the earliest possible moment, and provide immediate notice to
each Notice Holder and the Initial Purchaser of the withdrawal of any such
order.
(e) As promptly as practicable furnish to each applicable Notice
Holder, the Special Counsel, if any, and the Initial Purchasers, upon request
and without charge, at least one (1) conformed copy of the Registration
Statement and any amendment thereto, including exhibits.
(f) Deliver to each applicable Notice Holder, the Special Counsel,
if any, and the Initial Purchaser, in connection with any sale of Registrable
Securities pursuant to a Registration Statement, without charge, as many copies
of the Prospectus or Prospectuses relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has not
been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each such Notice Holder in connection with any offering and sale of
the Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities
pursuant to a Registration Statement, use its reasonable efforts to register or
qualify or cooperate with the Notice Holders and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be
included in the Notice and Questionnaire); prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use its
reasonable efforts to keep each such registration or qualification (or exemption
therefrom) effective during the Effectiveness Period in connection with such
Notice Holder's offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Registrable Securities in the manner set forth in the
relevant Registration Statement and the related Prospectus; provided that the
Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the 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
9
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 that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, subject to clause (ii)
below, 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, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the
next sentence, use its reasonable efforts to cause it to be declared
effective as promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special
Counsel, if any, that the availability of the Shelf Registration
Statement is suspended (a "Deferral Notice") and, upon receipt of any
Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice
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, subject to its ability to commence a Deferral Period, use its
reasonable 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 reasonable discretion of the Company, such suspension
is no longer appropriate. The Company shall be entitled to exercise its right
under this Section 3(h) to suspend the availability of the Shelf Registration
Statement or any Prospectus, without incurring or accruing any obligation to pay
liquidated damages pursuant to Section 2(e) (the "Deferral Period"); provided
that the aggregate duration of any Deferral Periods shall not exceed 90 days
(whether or not consecutive) in any twelve (12) month period.
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(i) If reasonably requested in writing in connection with a
disposition of Registrable Securities pursuant to a Registration Statement, make
reasonably available for inspection during normal business hours by a
representative for the Notice Holders of such Registrable Securities, any
broker-dealers, underwriters (if the Company has consented to an underwritten
offering), attorneys and accountants retained by such Notice Holders, and any
attorneys or other agents retained by a broker-dealer or underwriter (if the
Company has consented to an underwritten offering) engaged by such Notice
Holders, all relevant financial and other records and pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
appropriate officers, directors and employees of the Company and its
subsidiaries to make reasonably available for inspection during normal business
hours on reasonable notice all relevant information reasonably requested by such
representative for the Notice Holders, or any such broker-dealers,
underwriters(if the Company has consented to an underwritten offering),
attorneys or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided the Company is not
in a Deferral Period; and provided further that such persons shall first agree
in writing with the Company that any information that is reasonably designated
by the Company as confidential at the time of delivery of such information shall
be kept confidential by such persons and shall be used solely for the purposes
of exercising rights under this Agreement, unless (i) disclosure of such
information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (ii) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of any Registration
Statement or the use of any prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or (iv) such
information becomes available to any such person from a source other than the
Company and such source is not bound by a confidentiality agreement, and
provided further that the foregoing inspection and information gathering shall,
to the greatest extent possible, be coordinated on behalf of all the Notice
Holders and the other parties entitled thereto by Sidley Xxxxxx Xxxxx & Xxxx
LLP. Any person legally compelled to disclose any such confidential information
made available for inspection shall provide the Company with prompt prior
written notice of such requirement so that the Company may seek a protective
order or other appropriate remedy.
(j) Comply with all applicable rules and regulations of the SEC and
as soon as practicable make generally available to its securityholders earning
statements (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) for a 12-month period commencing on the
first day of the first fiscal quarter of the Company commencing after the
effective date of a Registration Statement.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Registration Statement, which certificates
shall not bear any restrictive legends, and cause such Registrable Securities to
be in such denominations as are permitted by the
11
Indenture and registered in such names as such Notice Holder may request in
writing at least two (2) Business Day prior to any sale of such Registrable
Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee and the transfer agent for the
Common Stock with printed certificates for the Registrable Securities that are
in a form eligible for deposit with The Depository Trust Company.
(m) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(n) In the case of a Shelf Registration Statement involving an
underwritten offering, the Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in a form substantially
similar to the underwriting agreements for its primary offerings) and take all
such other action, if any, as Holders of a majority of the Registrable
Securities being sold or any managing underwriters shall reasonably request in
order to facilitate any disposition of Notes and Underlying Common Stock
pursuant to such Shelf Registration Statement, including, without limitation,
(i) using its reasonable efforts to cause its counsel to deliver an opinion or
opinions in a form substantially similar to the opinions for its primary
offerings, (ii) using its reasonable efforts to cause its officers to execute
and deliver all documents and certificates in a form substantially similar to
the documents and certificates for its primary offerings and (iii) using its
reasonable efforts to cause its independent public accountants to provide a
comfort letter or letters in a form substantially similar to the comfort letter
in its primary offerings.
(o) Upon (i) the filing of the Initial Shelf Registration Statement
and (ii) the effectiveness of the Initial Shelf Registration Statement, announce
the same, in each case by release to Reuters Economic Services and Bloomberg
Business News.
12
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Notice Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Notice
Holder not misleading and any other information regarding such Notice Holder and
the distribution of such Registrable Securities as the Company may from time to
time reasonably request. Any sale of any Registrable Securities by any Holder
shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set forth
in the Registration Statement and in the Prospectus delivered by such Holder in
connection with such disposition, that such Registration Statement and
Prospectus do not as of the time of such sale contain any untrue statement of a
material fact relating to or provided by such Holder or its plan of distribution
and that such Registration Statement and Prospectus do not as of the time of
such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary to make the statements in such
Registration Statement and Prospectus, in the light of the circumstances under
which they were made, not misleading.
Section 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as Notice Holders of a majority of the Registrable
Securities being sold pursuant to a Registration Statement may designate), (ii)
printing expenses (including, without limitation, expenses of printing
certificates for Registrable Securities in a form eligible for deposit with The
Depository Trust Company), (iii) duplication expenses relating to copies of any
Registration Statement or Prospectus delivered to any Holders hereunder, (iv)
fees and disbursements of counsel for the Company in connection with the Shelf
Registration Statement, (v) reasonable fees and disbursements of the Trustee and
its counsel and of the registrar and transfer agent for the Common Stock and
(vi) any Securities Act liability insurance obtained by the Company in its sole
discretion. In addition, the Company shall pay the internal expenses of the
Company (including, without limitation, all salaries and expenses of officers
and employees performing legal or accounting duties), the expense of any annual
audit, the fees and expenses incurred in connection with the listing by the
Company of the Registrable Securities on any securities exchange on which
similar securities of the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company. Notwithstanding
the provisions of this Section 5, each seller of Registrable Securities shall
pay selling expenses, including any underwriting discount and commissions, all
registration expenses to the extent required by applicable law and any and fees
and disbursements of counsel or other agents for such seller.
13
Section 6. Indemnification and Contribution.
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Notice Holder, each person who controls any Notice Holder
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, against any and all losses, claims, damages or liabilities
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or in any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), arising out of or based upon any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and agrees to reimburse such indemnified party to the
extent set forth below, as incurred, for any legal or other expenses reasonably
incurred by it in connection with investigating or defending any such loss,
claim, damage, liability or action; except insofar as any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission based upon information
relating to any Holder furnished to the Company in writing by or on behalf of
such Holder specifically for use therein; provided that the Company will not be
liable to any indemnified person on account of any such losses, claims, damages
or liabilities arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in any preliminary
prospectus provided in each case the Company has performed its obligations under
Section 3(f) hereof if either (A) (i) the Holder failed to send or deliver a
copy of the Prospectus with or prior to the delivery of written confirmation of
the sale by such Holder to the person asserting the claim from which such
losses, claims, damages or liabilities arise and (ii) the Prospectus would have
corrected such untrue statement or alleged untrue statement or such omission or
alleged omission, or (B) (x) such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or supplement to the
Prospectus and (y) having previously been furnished by or on behalf of the
Company with copies of the Prospectus as so amended or supplemented, such Holder
thereafter fails to deliver such Prospectus as so amended or supplemented, with
or prior to the delivery of written confirmation of the sale of a Registrable
Security to the person asserting the claim from which such losses, claims,
damages or liabilities arise. In connection with any underwritten offering
pursuant to Section 8, the Company will also indemnify the underwriters, if any,
their officers and directors and each person who controls such underwriters
(within the meaning of the Securities Act and the Exchange Act) to the same
extent as provided herein with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement.
(b) Indemnification by Holders. Each Holder agrees severally and not
jointly to indemnify and hold harmless the Company, each of its directors, each
of its officers and each person who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act, to
the same extent as the foregoing indemnity from the Company to such Holder, but
only with reference to written information relating to such Holder furnished to
the Company by or on behalf of such Holder for use in the preparation of the
documents referred to in the foregoing indemnity. In no event shall the
liability of any Holder hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Registrable Securities
pursuant to the Registration Statement giving rise to such indemnification
obligation. In connection with any underwritten offering pursuant to
14
Section 8, each Holder will also indemnify the underwriters, if any, their
officers and directors and each person who controls such underwriters (within
the meaning of the Securities Act and the Exchange Act) to the same extent as
provided herein with respect to the indemnification of the Company, if requested
in connection with any Registration Statement.
(c) Conduct of Indemnification Proceedings. Promptly after receipt
by an indemnified party under this Section 6 of notice of the commencement of
any action (including any governmental investigation), such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under this Section 6. 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 shall wish, jointly, with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party). In any such proceeding, any indemnified party shall have the right to
obtain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential conflicts of interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for the fees and expenses of more than one
separate identified firm (in addition to any identified local counsel) for all
such indemnified parties and that all such fees and expenses shall be reimbursed
as they are incurred. Such firm shall be designated in writing by, in the case
of parties indemnified pursuant to Section 6(a), the Holders of a majority (with
Holders of Notes deemed to be the Holders, for purposes of determining such
majority, of the number of shares of Underlying Common Stock into which such
Notes are or would be convertible as of the date on which such designation is
made) of the Registrable Securities covered by the Registration Statement held
by Holders that are indemnified parties pursuant to Section 6(a) and, in the
case of parties indemnified pursuant to Section 6(b), the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld or delayed), effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such proceeding and
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of the indemnified party.
(d) Contribution. To the extent that the indemnification provided
for in Section 6(a) or 6(b) hereof is unavailable to an indemnified party or
insufficient in respect of any losses,
15
claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the initial placement pursuant to the Purchase Agreement (before deducting
expenses) of the Registrable Securities to which such losses, claims, damages or
liabilities relate. The relative benefits received by any Holder shall be deemed
to be equal to the value of receiving Registrable Securities that are registered
under the Securities Act. The relative fault of the Holders on the one hand and
the Company 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 Holders or by the Company, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Holders' respective obligations to contribute
pursuant to this paragraph 6 are several in proportion to the respective number
of Registrable Securities they have sold pursuant to a Registration Statement,
and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section 6, no indemnifying party that is a selling Holder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities sold by it and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
an indemnified party at law or in equity, hereunder, under the Purchase
Agreement or otherwise.
(f) The indemnity and contribution provisions contained in this
Section 6 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on behalf
of any Holder, any person controlling any Holder or
16
any affiliate of any Holder or by or on behalf of the Company, its officers or
directors or any person controlling the Company and (iii) the sale of any
Registrable Securities by any Holder.
Section 7. Information Requirements. The Company covenants that, if at
any time before the end of the Effectiveness Period the Company is not subject
to the reporting requirements of the Exchange Act, it will comply with Rule
144A(d)(4) to the extent required from time to time to enable such Holder to
sell Registrable Securities without registration under the Securities Act within
the limitation of the exemptions provided by Rule 144A under the Securities Act.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities (other than the Common
Stock) under any section of the Exchange Act.
Section 8. Underwritten Registrations. The Holders of Registrable
Securities covered by a Shelf Registration Statement who desire to do so may
sell such Registrable Securities to an underwriter in an underwritten offering
for reoffering to the public if the Company consents to such method of
distribution. If any of the Registrable 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
administer the offering will be selected by the Holders of a majority of such
Registrable Securities included in such offering, subject to the consent of the
Company (which shall not be unreasonably withheld or delayed), and such Holders
shall be responsible for all underwriting commissions and discounts and any
transfer taxes in connection therewith. No person may participate in any
underwritten registration hereunder unless such person (i) agrees to sell such
person's Registrable 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.
Section 9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date on
which such consent is requested). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by Holders of at least a
majority of the Registrable Securities being sold by such Holders pursuant to
such Registration Statement; provided that the provisions of this sentence may
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended by written agreement signed by the
Company and the Managers, without the consent of the Holders of Registrable
Securities, to cure any ambiguity or to correct or supplement any provision
contained
17
herein that may be defective or inconsistent with any other provision contained
herein, or to make such other provisions in regard to matters or questions
arising under this Agreement that shall not adversely affect the interests of
the Holders of Registrable Securities. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier or (iv) on the
date indicated on the notice of receipt, if made by first-class mail, to the
parties as follows:
(i) if to a Holder, at the most current address given by
such Holder to the Company in a Notice and Questionnaire or any
amendment thereto;
(ii) if to the Company, to:
Xxxxx Fargo & Company
x/x Xxxxxx & Xxxxxx XXX
0000 Xxxxx Xxxxx Center
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopy: (000)000-0000
(iii) if to the Managers, to:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
4 World Financial Center
New York, New York 10080
Attention: Xxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Equity Capital Markets
Telecopy No.: (000) 000-0000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(c) Approval of Holders. Whenever the consent or approval of Holders
of a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(d) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Indenture. If any transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities,
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.
(e) 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 original and all of which taken together
shall constitute one and the same agreement.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. If any term provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
19
(i) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement.
(j) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Xxxxx Fargo & Company
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxx X. Xxxxxxxxxxxx
-----------------------------
Name: Xxxxx X. Xxxxxxxxxxxx
Title:
/s/ Xxxxxxx, Sachs & Co.
---------------------------------
(Xxxxxxx, Xxxxx & Co.)
Acting severally on behalf of themselves and the
several Initial Purchasers
21
