Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated as of February 17, 2005 (the
"Agreement") is entered into by and among Dow Xxxxx & Company, Inc., a
Delaware corporation (the "Company"), and X.X. Xxxxxx Securities Inc.
("JPMorgan"), Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("Xxxxxxx Xxxxx") and the other Initial Purchasers (together
with XX Xxxxxx and Xxxxxxx Xxxxx, the "Initial Purchasers") named on
Schedule 1 to the Purchase Agreement (defined below).
The Company and the Initial Purchasers are parties to the Purchase
Agreement dated February 14, 2005 (the "Purchase Agreement"), which
provides for the sale by the Company to the Initial Purchasers of
$225,000,000 aggregate principal amount of the Company's 3.875% Senior
Notes due 2008 (the "Notes"). As an inducement to the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide to the
Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(d)
hereof.
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or
required by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Registrable Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and any document incorporated by reference therein.
"Exchange Notes" shall mean 3.875% Senior Notes due 2008 issued by the
Company under the Indenture containing terms identical to the Notes (except
that the Exchange Notes will not be subject to restrictions on transfer or
to any increase in annual interest rate for failure to comply with this
Agreement) and to be offered to Holders of Notes in exchange for Notes
pursuant to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Notes, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Notes under the
Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Notes dated as of
February 17, 2005 among the Company and The Bank of New York, as trustee,
and as the same may be amended from time to time in accordance with the
terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Inspector" shall have the meaning set forth in Section 3(a)(xiii)
hereof.
"JPMorgan" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of the outstanding Registrable Notes; provided
that whenever the consent or approval of Holders of a specified percentage
of Registrable Notes is required hereunder, any Registrable Notes owned
directly or indirectly by the Company or any of its affiliates shall not be
counted in determining whether such consent or approval was given by the
Holders of such required percentage or amount; and provided, further, that
if the Company shall issue any additional Notes under the Indenture prior
to consummation of the Exchange Offer or, if applicable, the effectiveness
of any Shelf Registration Statement, such additional Notes and the
Registrable Notes to which this Agreement relates shall be treated together
as one class for purposes of determining whether the consent or approval of
Holders of a specified percentage of Registrable Notes has been obtained.
"Xxxxxxx Xxxxx" shall have the meaning set forth in the preamble.
"Notes" shall have the meaning set forth in the preamble.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Notes covered by a Shelf Registration Statement,
and by all other amendments and supplements to such prospectus, and in each
case including any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Notes" shall mean the Notes; provided that the Notes
shall cease to be Registrable Notes (i) when a Registration Statement with
respect to such Notes has been declared effective under the Securities Act
and such Notes have been exchanged or disposed of pursuant to such
Registration Statement or, unless not permitted to be so tendered by any
applicable law or applicable interpretations of the Staff or otherwise, not
tendered in connection with the Exchange Offer, (ii) when such Notes are
eligible to be sold pursuant to Rule 144(k) (or any similar provision then
in force, but not Rule 144A) under the Securities Act or (iii) when such
Notes cease to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for
any Underwriters or Holders in connection with blue sky qualification of
any Exchange Notes or Registrable Notes), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments
or supplements thereto, any underwriting agreements, securities sales
agreements or other similar agreements and any other documents relating to
the performance of and compliance with this Agreement, (iv) all rating
agency fees, (v) all fees and disbursements relating to the qualification
of the Indenture under applicable securities laws, (vi) the fees and
disbursements of the Trustee and its counsel, (vii) the fees and
disbursements of counsel to the Company and, in the case of a Shelf
Registration Statement, the reasonable fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority
Holders and which counsel may also be counsel to the Initial Purchasers)
and (viii) the fees and disbursements of the independent registered public
accounting firms of the Company and MarketWatch, including the expenses of
any special audits or "comfort" letters required by or incident to the
performance of and compliance with this Agreement, but excluding fees and
expenses of counsel to the Underwriters (other than fees and expenses set
forth in clause (ii) above) or the Holders and underwriting discounts and
commissions, brokerage commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Notes by a Holder.
"Registration Statement" shall mean any registration statement of the
Company that covers any of the Exchange Notes or Registrable Notes pursuant
to the provisions of this Agreement and all amendments and supplements to
any such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto
and any document incorporated by reference therein.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Shelf Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company that covers all or a portion of the Registrable
Notes (but no other securities unless approved by the Holders of a majority
in a principal amount of Registrable Notes which are to be covered by such
Shelf Registration Statement) on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the SEC, and
all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"Staff" shall mean the staff of the SEC.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"Underwriter" shall have the meaning set forth in Section 3(e) hereof.
"Underwritten Offering" shall mean an offering in which Registrable
Notes are sold to an Underwriter for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the
Staff, the Company shall use its commercially reasonable efforts to (i)
cause to be filed, not later than 90 days following the Closing Date, an
Exchange Offer Registration Statement covering an offer to the Holders to
exchange all the Registrable Notes for Exchange Notes, (ii) cause the
Exchange Offer Registration Statement to be declared effective under the
Securities Act within 180 days of the Closing Date, (iii) have such
Registration Statement remain effective until the closing of the Exchange
Offer and (iv) cause the Exchange Offer to be consummated not later than
210 days following the Closing Date. The Company shall commence the
Exchange Offer promptly after the Exchange Offer Registration Statement is
declared effective by the SEC and use its commercially reasonable efforts
to complete the Exchange Offer as soon as reasonably practicable after such
effective date.
The Company shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying
documents to each Holder stating, in addition to such other disclosures as
are required by applicable law, substantially the following:
(i) that the Exchange Offer is being made pursuant to this Agreement and
that all Registrable Notes validly tendered and not properly
withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a period of at
least 20 Business Days from the date such notice is mailed) (the
"Exchange Dates");
(iii) that any Registrable Note not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under
this Agreement;
(iv) that any Holder electing to have a Registrable Note exchanged
pursuant to the Exchange Offer will be required to surrender such
Registrable Note, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner
specified in the notice, prior to the close of business on the last
Exchange Date; and
(v) that any Holder will be entitled to withdraw its election, not later
than the close of business on the last Exchange Date, by sending to
the institution and at the address (located in the Borough of
Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Notes
delivered for exchange and a statement that such Holder is
withdrawing its election to have such Notes exchanged.
As a condition to participating in the Exchange Offer, a Holder will
be required to represent to the Company that (i) any Exchange Notes to be
received by it will be acquired in the ordinary course of its business,
(ii) at the time of the commencement of the Exchange Offer it has no
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange
Notes in violation of the provisions of the Securities Act, (iii) it is not
an "affiliate" (within the meaning of Rule 405 under the Securities Act) of
the Company and (iv) if such Holder is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Registrable Notes that
were acquired as a result of market-making or other trading activities,
then such Holder will deliver a Prospectus in connection with any resale of
such Exchange Notes.
As soon as reasonably practicable after the last Exchange Date, the
Company shall:
(i) accept for exchange Registrable Notes or portions thereof validly
tendered and not properly withdrawn pursuant to the Exchange Offer;
and
(ii) deliver, or cause to be delivered, to the Trustee for cancellation
all Registrable Notes or portions thereof so accepted for exchange
by the Company and issue, and cause the Trustee to promptly
authenticate and deliver to each Holder, Exchange Notes equal in
principal amount to the principal amount of the Registrable Notes
surrendered by such Holder.
The Company shall use its commercially reasonable efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable
laws and regulations in connection with the Exchange Offer. The Exchange
Offer shall not be subject to any conditions, other than that the Exchange
Offer does not violate any applicable law or applicable interpretations of
the Staff.
(b) In the event that (i) the Company determines that the Exchange
Offer Registration provided for in Section 2(a) above is not available or
may not be completed as soon as reasonably practicable after the last
Exchange Date because it would violate any applicable law or applicable
interpretations of the Staff, (ii) the Exchange Offer is not for any other
reason completed by September 17, 2005 or (iii) any Initial Purchaser shall
so request in connection with any offer or sale of Registrable Notes held
by it because it is not permitted to participate in the Exchange Offer or
would not receive freely tradable Exchange Notes pursuant to the Exchange
Offer, the Company shall use its commercially reasonable efforts to cause
to be filed as soon as reasonably practicable after such determination,
date or request, as the case may be, a Shelf Registration Statement
providing for the sale of all the Registrable Notes by the Holders thereof
and to have such Shelf Registration Statement declared effective by the
SEC.
In the event that the Company is required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause (ii) of
the preceding paragraph but the Exchange Offer is completed on a date later
than September 17, 2005, upon consummation of the Exchange Offer the
Company will no longer be required to file, have declared effective or
continue the effectiveness of the Shelf Registration Statement pursuant to
such clause (ii) (without prejudice to its obligations under clause (i) or
(iii) of the preceding paragraph).
In the event that the Company is required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause (iii) of
the second preceding paragraph, the Company shall use its commercially
reasonable efforts to file and have declared effective by the SEC both an
Exchange Offer Registration Statement pursuant to Section 2(a) with respect
to all Registrable Notes and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Notes held by
the Initial Purchasers after completion of the Exchange Offer.
The Company agrees to use its commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective until the earliest
of (i) February 17, 2007, (ii) expiration of the period referred to in Rule
144(k) (or any similar rule then in force, but not Rule 144A) under the
Securities Act with respect to the Registrable Notes and (iii) such shorter
period that will terminate when all the Registrable Notes covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (the "Shelf Effectiveness Period"). The Company
further agrees to supplement or amend the Shelf Registration Statement and
the related Prospectus if required by the rules, regulations or
instructions applicable to the registration form used by the Company for
such Shelf Registration Statement or by the Securities Act or by any other
rules and regulations thereunder for shelf registration or if reasonably
requested by a Holder of Registrable Notes with respect to information
relating to such Holder, and to use its commercially reasonable efforts to
cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as thereafter
practicable. The Company agrees to furnish to the Holders of Registrable
Notes copies of any such supplement or amendment promptly after its being
used or filed with the SEC.
(c) The Company shall pay all Registration Expenses in connection with
any registration pursuant to Section 2(a) or Section 2(b) hereof. Each
Holder shall pay all underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, relating to the sale or disposition
of such Holder's Registrable Notes pursuant to the Shelf Registration
Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC.
In the event that either the Exchange Offer is not completed by
September 17, 2005, or the Shelf Registration Statement, if required
hereby, is not declared effective on or prior to October 17, 2005, the
interest rate on the Registrable Notes shall be increased by 0.25% per
annum for the first 90-day period (or portion thereof) after the
above-specified relevant date, which rate shall be increased by 0.25% per
annum at the beginning of the subsequent 90-day period and continue
thereafter, provided that the maximum aggregate increase in the interest
rate shall in no event exceed 0.50% per annum, until the Exchange Offer is
completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Notes become freely tradable under the
Securities Act. Any amounts payable under this paragraph shall be deemed
"Additional Interest" for purposes of this Agreement.
If the Shelf Registration Statement, if required hereby, has been
declared effective and thereafter either ceases to be effective or the
Prospectus contained therein ceases to be usable at any time during the
Shelf Effectiveness Period, and such failure to remain effective or usable
exists for more than 30 days (whether or not consecutive) in any 12-month
period, then, commencing on the 31st day in such 12-month period and ending
on such date that the Shelf Registration Statement has again been declared
effective or the Prospectus again becomes usable, the interest rate on the
Registrable Notes shall be increased by 0.25% per annum for the first
90-day period (or portion thereof) beginning on such 31st day, which rate
shall be increased by 0.25% per annum at the beginning of the subsequent
90-day period and continue thereafter, provided that the maximum aggregate
increase in the interest rate shall in no event exceed 0.50% per annum. Any
amounts payable under this paragraph shall also be deemed "Additional
Interest" for purposes of this Agreement.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company
to comply with their obligations under Section 2(a) and Section 2(b) hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. (a) In connection with its obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Company shall as
expeditiously as reasonably possible:
(i) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected
by the Company, (y) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Notes by the Holders thereof and
(z) shall comply as to form in all material respects with the requirements
of the applicable form and include all financial statements required by the
SEC to be filed therewith; and use its commercially reasonable efforts to
cause such Registration Statement to become effective and remain effective
for the applicable period in accordance with Section 2 hereof;
(ii) 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 effective for the applicable period in accordance
with Section 2 hereof and cause each Prospectus to be supplemented by any
required prospectus supplement and, as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and keep each Prospectus
current during the period described in Section 4(3) of and Rule 174 under
the Securities Act that is applicable to transactions by brokers or dealers
with respect to the Registrable Notes or Exchange Notes;
(iii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, to counsel for the Initial Purchasers, to counsel for
such Holders (which counsel shall be selected by Holders of a majority in
principal amount of Registrable Notes covered by the Shelf Registration)
and to each Underwriter of an Underwritten Offering of Registrable Notes,
if any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto, in order
to facilitate the sale or other disposition of the Registrable Notes
thereunder; and the Company consents to the use of such Prospectus and any
amendment or supplement thereto in accordance with applicable law by each
of the Holders of Registrable Notes and any such Underwriters in connection
with the offering and sale of the Registrable Notes covered by and in the
manner described in such Prospectus or any amendment or supplement thereto
in accordance with applicable law;
(iv) use its commercially reasonable efforts to register or qualify
the Registrable Notes under all applicable state securities or blue sky
laws of such jurisdictions as any Holder of Registrable Notes covered by a
Registration Statement shall reasonably request in writing by the time the
applicable Registration Statement is declared effective by the SEC;
cooperate with such Holders in connection with any filings required to be
made with the National Association of Securities Dealers, Inc.; and do any
and all other acts and things that may be reasonably necessary or advisable
to enable each Holder to complete the disposition in each such jurisdiction
of the Registrable Notes owned by such Holder; provided that the Company
shall not be required to (1) qualify as a foreign corporation or other
entity or as a dealer in securities in any such jurisdiction where it would
not otherwise be required to so qualify, (2) file any general consent to
service of process in any such jurisdiction, (3) subject itself to taxation
in any such jurisdiction if it is not so subject or (4) make any change to
its certificate of incorporation or by-laws;
(v) notify counsel for the Initial Purchasers and, in the case of a
Shelf Registration, notify each Holder of Registrable Notes and counsel for
such Holders (which counsel shall be selected by Holders of a majority in
principal amount of Registrable Notes covered by the Shelf Registration)
promptly and, if requested by any such Holder or counsel, confirm such
advice in writing (1) when a Registration Statement has become effective
and when any post-effective amendment thereto has been filed and becomes
effective, (2) of any request by the SEC or any state securities authority
for amendments and supplements to a Registration Statement and Prospectus
or for additional information after the Registration Statement has become
effective, (3) of the issuance by the SEC or any state securities authority
of any stop order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose, (4) if, between the
effective date of a Shelf Registration Statement and the closing of any
sale of Registrable Notes covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to
an offering of such Registrable Notes cease to be true and correct in all
material respects or if the Company receives any notification with respect
to the suspension of the qualification of the Registrable Notes for sale in
any jurisdiction or the initiation of any proceeding for such purpose, (5)
of the happening of any event during the period a Shelf Registration
Statement is effective that makes any statement made in such Shelf
Registration Statement or the related Prospectus untrue in any material
respect or that requires the making of any changes in such Shelf
Registration Statement or Prospectus in order to make the statements
therein not misleading, (6) of any determination by the Company that a
post-effective amendment to a Registration Statement would be appropriate
and (7) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable Notes or the
Exchange Notes, as the case may be, for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(vi) use its commercially reasonable efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement at
the earliest possible moment and provide immediate notice to each Holder of
the withdrawal of any such order;
(vii) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
any documents incorporated therein by reference or exhibits thereto, unless
requested);
(viii) in the case of a Shelf Registration, cooperate with the Holders
of Registrable Notes to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold and not bearing any
restrictive legends and enable such Registrable Notes to be issued in such
denominations and registered in such names (consistent with the provisions
of the Indenture) as such Holders may reasonably request at least one
Business Day prior to the closing of any sale of Registrable Notes;
(ix) in the case of a Shelf Registration, upon the occurrence of any
event contemplated by Section 3(a)(v)(5) hereof, use its commercially
reasonable efforts to prepare and file with the SEC a supplement or
post-effective amendment to such Shelf Registration Statement or the
related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to
purchasers of the Registrable Notes, such Prospectus will not contain any
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Company shall notify
the Holders of Registrable Notes to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and such
Holders hereby agree to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission;
(x) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, or any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document to
the Initial Purchasers and their counsel (and, in the case of a Shelf
Registration Statement, to the Holders of Registrable Notes and their
counsel) and make such of the representatives of the Company as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in
the case of a Shelf Registration Statement, the Holders of Registrable
Notes or their counsel) available for discussion of such document; and the
Company shall not, at any time after initial filing of a Registration
Statement, file any Prospectus, or any amendment of or supplement to a
Registration Statement or a Prospectus, of which the Initial Purchasers and
their counsel (and, in the case of a Shelf Registration Statement, the
Holders of Registrable Notes and their counsel) shall not have previously
been advised and furnished a copy or to which the Initial Purchasers or
their counsel (and, in the case of a Shelf Registration Statement, the
Holders of Registrable Notes or their counsel) shall reasonably and
promptly object. Notwithstanding the foregoing, the Company shall not be
required to provide the Initial Purchasers or their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Notes
and their counsel), prior to filing, with copies of any document that is to
be incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement or to refrain from filing
any such document that is to be so incorporated by reference to which the
Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Notes or their counsel)
shall reasonably and timely object, provided that the Company shall, to the
extent reasonably practicable in the light of the circumstances, consult
with the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders of Registrable Notes and their counsel)
as to the form and substance of any such document that is to be so
incorporated by reference prior to its filing;
(xi) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a
Registration Statement;
(xii) cause the Indenture to be qualified under the Trust Indenture
Act in connection with the registration of the Exchange Notes or
Registrable Notes, as the case may be; cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and execute, and use its commercially reasonable efforts to
cause the Trustee to execute, all documents as may be required to effect
such changes and all other forms and documents required to be filed with
the SEC to enable the Indenture to be so qualified in a timely manner;
(xiii) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable Notes (an
"Inspector"), any lead managing Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, any counsel and
accountants designated by the Holders of Registrable Notes and any counsel
and accountants designated by any such lead managing Underwriter, at
reasonable times and in a reasonable manner, all pertinent financial and
other records, documents and properties of the Company, and cause the
respective officers, directors and employees of the Company to supply all
information reasonably requested by any such Inspector, Underwriter,
attorney or accountant in connection with a Shelf Registration Statement;
provided that if any such information is identified by the Company as being
confidential or proprietary, each Person receiving such information shall
take such actions as are reasonably necessary to protect the
confidentiality of such information to the extent such action is otherwise
not inconsistent with, an impairment of or in derogation of the rights and
interests of any Inspector, Holder or Underwriter);
(xiv) in the case of a Shelf Registration, use its commercially
reasonable efforts to cause all Registrable Notes to be listed on any
securities exchange or any automated quotation system on which similar
securities issued by the Company are then listed if requested by the
Majority Holders, to the extent such Registrable Notes satisfy applicable
listing requirements;
(xv) if reasonably requested by any Holder of Registrable Notes
covered by a Shelf Registration Statement, promptly include in a Prospectus
supplement or post-effective amendment such information with respect to
such Holder as such Holder reasonably requests to be included therein and
make all required filings of such Prospectus supplement or such
post-effective amendment as soon as the Company has received notification
of the matters to be so included in such filing; and
(xvi) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith
(including those requested by the Holders of a majority in principal amount
of the Registrable Notes being sold) in order to expedite or facilitate the
disposition of such Registrable Notes including, but not limited to, an
Underwritten Offering and in such connection, (1) to the extent possible,
make such representations and warranties to the Holders and any
Underwriters of such Registrable Notes with respect to the business of the
Company and its subsidiaries and the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if
any, in each case, in form, substance and scope as are customarily made by
issuers to underwriters in underwritten offerings and confirm the same if
and when requested, (2) if requested by or on behalf of Holders of a
majority in principal amount of the Registrable Notes being sold, obtain
opinions of counsel to the Company (which counsel and opinions, in form,
scope and substance, shall be reasonably satisfactory to the Holders and
such Underwriters and their respective counsel) addressed to each selling
Holder and Underwriter of Registrable Notes, covering the matters
customarily covered in opinions requested in underwritten offerings, (3) if
requested by or on behalf of Holders of a majority in principal amount of
the Registrable Notes being sold, obtain "comfort" letters from the
independent certified public accountants of the Company and, if appropriate
MarketWatch (and, if necessary, any other certified public accountant of
any subsidiary of the Company, or of any business acquired by the Company
(including, without limitation, MarketWatch, Inc.) for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Notes, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection
with underwritten offerings (unless delivery of such "comfort" letters is
not permitted under applicable professional standards) and (4) deliver such
documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Registrable Notes being sold or the
Underwriters, and which are customarily delivered in underwritten
offerings, to evidence the continued validity of the representations and
warranties of the Company made pursuant to clause (1) above and to evidence
compliance with any customary conditions contained in an underwriting
agreement.
(b) In the case of a Shelf Registration Statement, the Company may
require each Holder of Registrable Notes to furnish to the Company such
information regarding such Holder (including, without limitation, a
customary selling Holder questionnaire) and the proposed disposition by
such Holder of such Registrable Notes as the Company may from time to time
reasonably request in writing.
(c) In the case of a Shelf Registration Statement, each Holder of
Registrable Notes agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 3(a)(v)(3)
or 3(a)(v)(5) hereof, such Holder will forthwith discontinue disposition of
Registrable Notes pursuant to the Shelf Registration Statement until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 3(a)(ix) hereof and, if so directed by the Company,
such Holder will deliver to the Company all copies in its possession, other
than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Notes that is current at the time of
receipt of such notice.
(d) If the Company shall give any notice pursuant to Section 3(c)
hereof to suspend the disposition of Registrable Notes pursuant to a Shelf
Registration Statement, the Company shall extend the period during which
such Shelf Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days during the period from and including
the date of the giving of such notice to and including the date when the
Holders of such Registrable Notes shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions.
The Company may give any such notice only twice during any 365-day period
and any such suspensions shall not exceed 30 days for each suspension and
there shall not be more than two suspensions in effect during any 365-day
period.
(e) The Holders of Registrable Notes covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Notes in an
Underwritten Offering. In any such Underwritten Offering, the investment
bank or investment banks and manager or managers (each an "Underwriter")
that will administer the offering will be selected, after consultation with
the Company, by the Holders of a majority in principal amount of the
Registrable Notes included in such offering.
4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff
has taken the position that any broker-dealer that receives Exchange Notes
for its own account in the Exchange Offer in exchange for Notes that were
acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection
with any resale of such Exchange Notes.
The Company understands that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes
a plan of distribution containing a statement to the above effect and the
means by which Participating Broker-Dealers may resell the Exchange Notes,
without naming the Participating Broker-Dealers or specifying the amount of
Exchange Notes owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery
obligation under the Securities Act in connection with resales of Exchange
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Securities Act.
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Company agrees to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement for a period of up
to 120 days after the last Exchange Date (as such period may be extended
pursuant to Section 3(d) of this Agreement), if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to
expedite or facilitate the disposition of any Exchange Notes by
Participating Broker-Dealers consistent with the positions of the Staff
recited in Section 4(a) above. The Company further agrees that
Participating Broker-Dealers shall be authorized to deliver such Prospectus
during such period in connection with the resales contemplated by this
Section 4.
(c) The Initial Purchasers shall have no liability to the Company or
any Holder with respect to any request that they may make pursuant to
Section 4(b) above.
5. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser and each Holder, their
respective affiliates, directors and officers and each Person, if any, who
controls any Initial Purchaser or any Holder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted, as such fees and
expenses are incurred), that arise out of, or are based upon, any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus or any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information
relating to any Initial Purchaser or information relating to any Holder
furnished to the Company in writing through JPMorgan, Xxxxxxx Xxxxx or any
selling Holder expressly for use therein. In connection with any
Underwritten Offering permitted by Section 3, the Company will also
indemnify the Underwriters, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
respective affiliates and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if
requested in connection with any Registration Statement. Notwithstanding
the foregoing, with respect to any untrue statement in or omission from any
related preliminary Prospectus, the indemnity agreement contained in this
Section 5 shall not inure to the benefit of any Holder from whom the person
asserting any such loss, claim, damage or liability received Notes or
Exchange Notes to the extent that such loss, claim, damage or liability of
or with respect to such Holder results from the fact that both (i) the
final Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes or Exchange Notes to such
person and (ii) the untrue statement in or omission from the related
preliminary Prospectus was corrected in the final Prospectus unless, in
either case, such failure to deliver the final Prospectus was the result of
non-compliance by the Company with Section 2(b), 3(a)(iii) or 3(a)(vii)
hereof.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers and the other selling
Holders, the directors of the Company, each officer of the Company who
signed the Registration Statement and each Person, if any, who controls the
Company, any Initial Purchaser and any other selling Holder within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the indemnity set forth in Section 5(a) above,
but only with respect to any losses, claims, damages or liabilities that
arise out of, or are based upon, any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Holder furnished to the
Company in writing by such Holder expressly for use in any Registration
Statement and any Prospectus.
(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 indemnification may be sought
pursuant to either Section 5(a) or 5(b) above, such Person (the
"Indemnified Person") shall promptly notify the Person against whom such
indemnification may be sought (the "Indemnifying Person") in writing;
provided that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have under this Section 5 except
to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall
not relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be
brought or asserted against an Indemnified Person and it shall have
notified the Indemnifying Person thereof, the Indemnifying Person shall
retain counsel reasonably satisfactory to the Indemnified Person to
represent the Indemnified Person and any others entitled to indemnification
pursuant to this Section 5 that the Indemnifying Person may designate in
such proceeding and shall pay the fees and expenses of such counsel related
to such proceeding, as incurred. 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 contrary; (ii) the Indemnifying Person has failed
within a reasonable time to retain counsel reasonably satisfactory to the
Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are
different from or in addition to those available to the Indemnifying
Person; or (iv) 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 and agreed that the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate
firm (in addition to any local counsel) for all Indemnified Persons, and
that all such fees and expenses shall be reimbursed as they are incurred.
Any such separate firm (x) for any Initial Purchaser, its affiliates,
directors and officers and any control Persons of such Initial Purchaser
shall be designated in writing by JPMorgan and Xxxxxxx Xxxxx, (y) for any
Holder, its directors and officers and any control Persons of such Holder
shall be designated in writing by the Majority Holders and (z) in all other
cases 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 each Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have requested that an
Indemnifying Person reimburse the Indemnified Person for fees and expenses
of counsel as contemplated by this paragraph, the Indemnifying Person shall
be liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the 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
indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional release of
such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any statement as to or
any admission of fault, culpability or a failure to act by or on behalf of
any Indemnified Person.
(d) If the indemnification provided for in Sections 5(a) and 5(b)
above is unavailable to an Indemnified Person or insufficient in respect of
any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, 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 Company from the offering of the
Notes and the Exchange Notes, on the one hand, and by the Holders from
receiving Notes or Exchange Notes registered under the Securities Act, on
the other hand, or (ii) if the allocation provided by clause (i) is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but also
the relative fault of the Company on the one hand and the Holders 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 Company on the one hand
and the Holders on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or by the Holders and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation (even if the Holders 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 Section 5(d) above. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in Section 5(d) above shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 5, in no
event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Notes or Exchange Notes sold
by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to
any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this
Section 5 shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Initial Purchasers or any Holder or any Person controlling
any Initial Purchaser or any Holder, or by or on behalf of the Company or
the officers or directors of or any Person controlling the Company, (iii)
acceptance of any of the Exchange Notes and (iv) any sale of Registrable
Notes pursuant to a Shelf Registration Statement.
6. General.
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(a) No Inconsistent Agreements. The Company represents, warrants and
agrees that (i) 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 any other outstanding securities issued by the Company under any
other agreement and (ii) the Company has not entered into, on or after the
date of this Agreement will not enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Notes in
this Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless the Company has obtained the written consent
of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Notes affected by such amendment, modification,
supplement, waiver or consent; provided that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of
Section 5 hereof shall be effective as against any Holder of Registrable
Notes unless consented to in writing by such Holder. Any amendments,
modifications, supplements, waivers or consents pursuant to this Section
6(b) shall be by a writing executed by each of the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect
to the Initial Purchasers, the address set forth in the Purchase Agreement;
(ii) if to the Company, initially at the Company's address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c); and (iv) to
such other persons at their respective addresses as provided in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 6(c). 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 answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the
next Business Day if timely delivered to an air courier guaranteeing
overnight delivery. Copies of all such notices, demands or other
communications shall be concurrently delivered by the Person giving the
same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of
the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein shall
be deemed to permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Notes in any manner, whether by operation of law or otherwise, such
Registrable Notes shall be held subject to all the terms of this Agreement,
and by taking and holding such Registrable Notes 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. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company
with respect to any failure by a Holder to comply with, or any breach by
any Holder of, any of the obligations of such Holder under this Agreement.
(e) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Company, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(h) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(j) Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes
all oral statements and prior writings with respect thereto. If any term,
provision, covenant or restriction contained in this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable or
against public policy, the remainder of the terms, provisions, covenants
and restrictions contained herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated. The Company and the
Initial Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the
economic effect of which comes as close as possible to that of the invalid,
void or unenforceable provisions.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DOW XXXXX & COMPANY, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
---------------------------------
Xxxxxxxxxxx X. Xxxxx
Vice President & Chief Financial Officer
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
By /s/ Xxxxxx Xxxxxxxxx
----------------------------
Authorized Signatory
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By /s/ Xxxxxxxxxxx Xxxxxx
----------------------------
Authorized Signatory
For themselves and on behalf of the
several Initial Purchasers
