EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into
as of March 19, 2002 by and between Ohio Casualty Corporation, an Ohio
corporation (the "Company"), and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce,
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▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. and McDonald
Investments, Inc. (collectively, the "Initial Purchasers") pursuant to the
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Purchase Agreement, dated as of March 13, 2002 (the "Purchase Agreement"),
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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 the
benefit of the Initial Purchasers and (ii) for the benefit of the beneficial
owners (including the Initial Purchasers) from time to time of the
Securities (as defined herein) and the beneficial owners from time to time
of the Underlying Common Shares (as defined herein) issued upon conversion
of the Securities (each of the foregoing a "Holder" and together the
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"Holders"), as follows:
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Section 1. Definitions. Capitalized terms used herein without
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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
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"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline Date" has the meaning
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specified in Section 2(d) hereof.
"Business Day" means each Monday, Tuesday, Wednesday,
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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 Shares" means any common shares, par value $0.125
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per share, of the Company and any other common shares as may constitute
"Common Shares" for purposes of the Indenture, including the Underlying
Common Shares.
"Conversion Price" has the meaning assigned to that term in
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the Indenture.
"Damages Accrual Period" has the meaning specified in Section
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2(e) hereof.
"Damages Payment Date" means each March 19 and September 19 in
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the case of Securities and the Underlying Common Shares.
"Deferral Notice" has the meaning specified in Section 3(i) hereof.
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"Deferral Period" has the meaning specified in Section 3(i) hereof.
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"Effectiveness Deadline Date" has the meaning specified in Section
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2(a) hereof.
"Effectiveness Period" means the period of two years from the Issue
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Date or such shorter period that will terminate upon the earliest of the
following: (A) when all the Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration Statement or
when all Common Shares issued upon conversion of any such Securities that
had not been sold pursuant to the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement and (B) when, in the
written opinion of counsel to the Company, all outstanding Registrable
Securities held by persons which are not affiliates of the Company may be
resold without registration under the Securities Act pursuant to Rule 144(k)
under the Securities Act or any successor provision thereto.
"Event" has the meaning specified in Section 2(e) hereof.
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"Event Termination Date" has the meaning specified in Section 2(e)
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hereof.
"Event Date" has the meaning specified in Section 2(e) hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as
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amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning specified in Section 2(a)
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hereof.
"Holder" has the meaning specified in the second paragraph of this
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Agreement.
"Indenture" means the Indenture dated as of the date hereof
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between the Company and the Trustee, pursuant to which the Securities are
being issued.
"Initial Purchasers" has the meaning specified in the first
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paragraph of this Agreement.
"Initial Shelf Registration Statement" has the meaning specified
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in Section 2(a) hereof.
"Issue Date" means March 19, 2002.
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"Liquidated Damages Amount" has the meaning specified in Section
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2(e) hereof.
"Material Event" has the meaning specified in Section 3(i) hereof.
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"Notice and Questionnaire" means a written notice delivered to the
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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 March 13, 2002 relating to the
Securities.
"Notice Holder" means, on any date, any Holder that has delivered a
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Notice and Questionnaire to the Company on or prior to such date.
"Principal Amount" means, with the respect to the Securities, the
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principal amount due on the maturity date as shown on such Securities.
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"Prospectus" means the prospectus included in any Registration
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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 415 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 or explicitly deemed to be incorporated
by reference in such Prospectus.
"Purchase Agreement" has the meaning specified in the first
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paragraph of this Agreement.
"Record Holder" means, with respect to any Damages Payment
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Date relating to any Securities or Underlying Common Shares as to which any
Liquidated Damages Amount has accrued, the registered holder of such
Securities or Underlying Common Shares, as the case may be, 15 days prior to
the next succeeding Damages Payment Date.
"Registrable Securities" means the Securities and the
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Underlying Common Shares, until such Securities have been converted or
exchanged, and, at all times subsequent to any such conversion or exchange,
any securities into or for which such securities have 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,
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) were it not held by an Affiliate of the Company or (iii) its
sale to the public pursuant to Rule 144.
"Registration Expenses" means the expenses described in Section 5
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hereof.
"Registration Statement" means any registration statement of
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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" has the meaning assigned to that term in
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Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such
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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
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Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC" means the U.S. Securities and Exchange Commission and
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any successor agency.
"Securities" means the 5.00% Convertible Subordinated Notes
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due 2022 of the Company to be purchased pursuant to the Purchase Agreement.
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"Securities Act" means the Securities Act of 1933, as amended,
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and the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning specified in
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Section 2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning
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specified in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
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"Trustee" means HSBC Bank USA (or any successor entity), the
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Trustee under the Indenture.
"Underlying Common Shares" means the Common Shares into
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which the Securities are convertible or the Common Shares issued upon any
such conversion.
Section 2. Shelf Registration. (a) The Company shall prepare
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and file or cause to be prepared and filed with the SEC, as soon as
practicable but in any event by the date (the "Filing Deadline Date")
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ninety (90) 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
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resale from time to time by Holders thereof of all of the Registrable
Securities (the "Initial Shelf Registration Statement"). The Initial Shelf
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Registration Statement shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution elected by the Holders
and set forth in the Initial Shelf Registration Statement. The Company
shall use its best efforts to cause the Initial Shelf Registration Statement
to be declared effective under the Securities Act as promptly as is
practicable but in any event by the date (the "Effectiveness Deadline Date")
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that is one hundred and 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; provided, however, that no
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Holder shall be entitled to have the Registrable Securities held by it
covered by such Shelf Registration Statement unless such Holder shall have
provided a Notice and Questionnaire in accordance with Section 2(d) and is
in compliance with Section 4. 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.
(b) 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 sold pursuant thereto or
shall have otherwise ceased to be Registrable Securities), the Company shall
use its best 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
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Statement"). If a Subsequent Shelf Registration Statement is
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filed, the Company shall use its best efforts to cause the Subsequent Shelf
Registration statement to become effective as promptly as is practicable after
such filing and to keep such Subsequent Shelf Registration Statement (or
another Subsequent Shelf Registration Statement) continuously effective
until the end of the Effectiveness Period.
(c) 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, to the extent to which the
Company does not reasonably object, as reasonably requested by the Initial
Purchasers or by the Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities 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(i). Each Holder of Registrable Securities wishing
to sell Registrable Securities pursuant to a Shelf Registration Statement
and related Prospectus agrees to deliver a Notice and Questionnaire to the
Company at least three (3) Business Days prior to any intended distribution
of Registrable Securities under the Shelf Registration Statement; provided,
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that Holders of Registrable Securities shall have at least twenty (20)
Business Days from the date on which the Notice and Questionnaire is first
mailed to such Holders to return a completed and signed Notice and
Questionnaire to the Company. From and after the date the Initial Shelf
Registration Statement is declared effective, the Company shall, as promptly
as is practicable after the date a Notice and Questionnaire is delivered, and
in any event within three (3) Business Days after such 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 security holder 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 best efforts to cause such post-
effective amendment to be declared effective under the Securities
Act as promptly as is practicable, but in any event by the date (the
"Amendment Effectiveness Deadline Date") that is thirty (30) days
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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); 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
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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
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accordance with Section 3(i); provided, further, that if under applicable
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law the Company has more than one option as to the type or manner of making
any such filing, it will make the required filing or filings in the manner
or of a type that is reasonably expected to result in the earliest
availability of the Prospectus for effecting resales of Registrable
Securities. Notwithstanding anything contained herein to the contrary, the
Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling security holder in any Registration Statement or related
Prospectus; provided, however, that any Holder that becomes a Notice Holder
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pursuant to the provisions of this Section 2(d) (whether or not such Holder
was a Notice Holder at the time the Registration Statement was declared
effective) shall be named as a selling security holder in the Registration
Statement or related Prospectus in accordance with the requirements of this
Section 2(d).
(e) 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:
(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) hereof within the time period required therein, or
(iv) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant
to Section 3(i) hereof.
Each of the events of a type described in any of the foregoing clauses (i)
through (iv) are individually referred to herein as an "Event," and the
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Filing Deadline Date in the case of clause (i), the Effectiveness Deadline
Date in the case of clause (ii), the date by which the Company is required
to perform its obligations set forth in Section 2(d) in the case of clause
(iii) (including the filing of any post-effective amendment prior to the
Amendment Effectiveness Deadline Date), and the date on which the aggregate
duration of Deferral Periods in any period exceeds the number of days
permitted by Section 3(i) hereof in the case of clause (iv), are referred to
herein as an "Event Date." Events shall be deemed to continue until the
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"Event Termination Date," which shall be the following dates with respect to
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the respective types of Events: the date the Initial Shelf Registration
Statement is filed in the case of an Event of the type described in clause
(i), the date the Initial Shelf Registration Statement is declared effective
under the Securities Act in the case of an Event of the type described in
clause (ii), the date the Company performs its obligations set forth in
Section 2(d) in the case of an Event of the type described in clause (iii)
(including, without limitation, the date the relevant post-effective
amendment to the Shelf Registration Statement is declared effective under
the Securities Act), and termination of the Deferral Period that caused the
limit on the aggregate duration of Deferral Periods in a period set forth in
Section 3(i) to be exceeded in the case of the commencement of an Event of
the type described in clause (iv).
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Accordingly, commencing on (and including) any Event Date 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
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agrees to pay, as liquidated damages and not as a penalty, an amount
(the "Liquidated Damages Amount"), payable on the Damages Payment Dates to
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Record Holders of then outstanding Securities that are Registrable
Securities and of then outstanding Underlying Common Shares issued upon
conversion of Securities that are Registrable Securities, as the case may
be, accruing, for each portion of such Damages Accrual Period beginning on
and including a Damages Payment Date (or, in respect of the first time that
the Liquidation Damages Amount is to be paid to Holders on a Damages Payment
Date as a result of the occurrence of any particular Event, from the Event
Date) and ending on but excluding the first to occur of (A) the date of the
end of the Damages Accrual Period or (B) the next Damages Payment Date, at a
rate per annum equal to one-quarter of one percent (0.25%) for the first 90-
day period from the Event Date, and thereafter at a rate per annum equal to
one-half of one percent (0.5%) of the aggregate Principal Amount of such
Securities, or the Conversion Price of such Underlying Common Shares if the
Holder has converted such Securities into Underlying Common Shares, in each
case determined based on the Registrable Securities held by a Holder
entitled to be paid a Liquidated Damage Amount hereunder as of the Business
Day immediately preceding the next Damages Payment Date; provided, that in
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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) of the immediately preceding
paragraph, such Liquidated Damages Amount shall be paid only to the Holders
that have delivered Notice 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; provided, further, that any Liquidated Damages
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Amount accrued with respect to any Securities or portion thereof called for
redemption on a redemption date or converted into Underlying Common Shares
on a conversion date prior to the Damages Payment Date, shall, in any such
event, be paid instead to the Holder who submitted such Securities or
portion thereof for redemption or conversion on the applicable redemption
date or conversion date, as the case may be, on such date (or promptly
following the conversion date, in the case of conversion). Notwithstanding
the foregoing, no Liquidated Damages Amounts 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.
Following the cure of all Events requiring the payment by the Company of
Liquidated Damages Amounts to the Holders of Registrable Securities pursuant
to this Section, the accrual of Liquidated Damages Amounts will cease
(without in any way limiting the effect of any subsequent Event requiring
the payment of Liquidated Damages Amount by the Company).
The Trustee shall be entitled, on behalf of Holders of Securities
or Underlying Common Shares, to seek any available remedy for the enforcement
of this Agreement, including the payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole monetary
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 a Notice Holder or Holder of Registrable
Securities from pursuing or obtaining specific performance or other equitable
relief with respect to this Agreement.
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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 8(k)).
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.
Section 3. Registration Procedures. In connection with the
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registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial
Purchasers copies of all such documents proposed to be filed and use its
best efforts to reflect in each such document when so filed with the SEC such
comments as the Initial Purchasers reasonably shall propose within three (3)
Business Days of the delivery of such copies to the Initial Purchasers.
(b) 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 during the
Effectiveness Period; 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 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 in accordance with
the intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as practicable give notice to the Notice Holders
and the Initial Purchasers:
(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,
(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,
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(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 (provided, however, that no notice by the
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Company shall be required pursuant to this clause (v) in the event that
the Company either promptly files a Prospectus supplement to update
the Prospectus or a Form 8-K or other appropriate Exchange Act report
that is incorporated by reference into the Registration Statement,
which, in either case, contains the requisite information with respect
to such Material Event that results in such Registration Statement no
longer containing any untrue statement of material fact or omitting to
state a material fact necessary to make the statements contained therein
not misleading), 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(i)), state that it constitutes a Deferral Notice,
in which event the provisions of Section 3(i) shall apply.
(d) Use its best efforts to prevent the issuance, and if issued,
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 for
sale in any jurisdiction in which they have been qualified for sale, in
either case at the earliest possible moment.
(e) If reasonably requested by the Initial Purchasers or any Notice
Holder, promptly incorporate in a Prospectus supplement or post-effective
amendment to a Registration Statement such information as the Initial
Purchasers or such Notice Holder shall, on the basis of an opinion of
nationally-recognized counsel experienced in such matters, determine to
be required to be included therein by applicable law and make any required
filings of such Prospectus supplement or such post-effective amendment;
provided, that the Company shall not be required to take any actions under
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this Section 3(e) that are not, in the reasonable opinion of counsel for the
Company, in compliance with applicable law.
(f) Furnish to each Notice Holder and the Initial Purchasers, upon
their request and without charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto, including financial
statements but excluding schedules, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits (unless requested in
writing to the Company by such Notice Holder or the Initial Purchasers, as
the case may be).
(g) During the Effectiveness Period, deliver to each Notice Holder
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
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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 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.
(h) Prior to any public offering of the Registrable Securities
pursuant to the Shelf Registration Statement, register or qualify or
cooperate with the Notice Holders 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 best
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 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,
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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.
(i) 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
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Registration Statement shall contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, or any Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or (C) the occurrence or existence of any pending
corporate development that, in the 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 the next sentence,
promptly prepare and file 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
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case of a post-effective amendment to a Registration Statement, subject
to the next sentence, use its best efforts to cause it to be declared
effective as promptly as is reasonably practicable, and
(ii) give notice to the Notice Holders that the availability of the
Shelf Registration Statement is suspended (a "Deferral Notice") and,
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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 use its best efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as
soon as, in the sole judgment of the Company, public disclosure of
such Material Event would not be prejudicial to or contrary to the
interests of the Company or, if necessary to avoid unreasonable
burden or expense, as soon as reasonably practicable thereafter and
(z) in the case of clause (C) above, as soon as, in the discretion
of the Company, such suspension is no longer appropriate. The
period during which the availability of the Registration Statement
and any Prospectus is suspended (the "Deferral Period") without the
---------------
Company incurring any obligation to pay liquidated damages pursuant
to Section 2(e) shall not exceed forty-five (45) days in any three
(3) month period and ninety (90) days in any twelve (12) month
period.
(j) Make available for inspection during normal business hours by
a representative for the Notice Holders of Registrable Securities and any
broker-dealers, attorneys and accountants retained by such Notice Holders,
all relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the appropriate
executive officers, directors and designated employees of the Company and
its subsidiaries to make available for inspection during normal business
hours all relevant information reasonably requested by such representative
for the Notice Holders or any such broker-dealers, attorneys or accountants
in connection with such disposition, in each case as is customary for similar
"due diligence" examinations; provided, however, that such persons shall
-------- -------
first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing 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 or is not otherwise under a duty of trust to the
Company; and provided, further that the foregoing inspection and information
-------- -------
gathering shall, to the greatest extent possible, be coordinated on
11
behalf of all the Notice Holders and the other parties entitled thereto by the
counsel referred to in Section 5.
(k) Comply with all applicable rules and regulations of the SEC and
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) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period is a
fiscal year) commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of a Registration Statement,
which statements shall cover said 12-month periods.
(l) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Registration Statement, and cause such Registrable
Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at
least two Business Days prior to any sale of such Registrable Securities.
(m) 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 for the Securities and the
transfer agent for the Securities with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.
(n) Use its best efforts to provide such information as is required
for any filings required to be made with the National Association of
Securities Dealers, Inc.
(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.
(p) Enter into such customary agreements and take all such other
necessary actions in connection therewith (including those requested by the
Holders of a majority of the Registrable Securities being sold) in order to
expedite or facilitate disposition of such Registrable Securities.
(q) Cause the Indenture to be qualified under the TIA not later
than the effective date of any Registration Statement; and in connection
therewith, cooperate with the Trustee 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 TIA and execute, and use its best 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.
(r) Use its best efforts to cause all Underlying Common Shares
covered by each Registration Statement to be listed or quoted, by the date on
which the initial Shelf Registration Statement becomes effective, on each
securities exchange or interdealer quotation system on which Common Shares
are then listed or quoted or proposed by the Company to be listed or quoted,
if any.
12
Section 4. Holder's Obligations. Each Holder agrees, by
--------------------
acquisition of the Registrable Securities, that no Holder of Registrable
Securities 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 may be required to be disclosed in the Registration
Statement under applicable law.
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 of the Registration Statements are 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, fees and disbursements of the
counsel specified in the next sentence in connection with Blue Sky
qualifications of the Registrable Securities under the laws of such
jurisdictions as the 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, and (v) fees and
disbursements of the Trustee and its counsel and of the registrar and
transfer agent for the Common Shares. In addition, the Company shall bear
or reimburse the Notice Holders for the fees and disbursements of one firm
of legal counsel for the Holders, which shall initially be LeBoeuf, Lamb,
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., but which may, upon the written consent of the
Initial Purchasers (which shall not be unreasonably withheld), be another
nationally recognized law firm experienced in securities law matters
designated by the Company. 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 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.
Section 6. Indemnification; Contribution. (a) The Company
-----------------------------
agrees to indemnify and hold harmless the Initial Purchasers and each Holder
of Registrable Securities and each person, if any, who controls the Initial
Purchasers or any Holder of Registrable Securities within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act,
as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material
13
fact contained in the Registration Statement (or any amendment thereto),
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, provided, that (subject to
Section 6(d) below) any such settlement is effected with the prior
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
-------- -------
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchasers or such Holder of Registrable Securities (which also acknowledges
the indemnity provisions herein) and each person, if any, who controls the
Initial Purchasers or any such Holder of Registrable Securities expressly for
use in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(b) In connection with any Shelf Registration Statement in which a
Holder, including, without limitation, the Initial Purchasers, of Registrable
Securities is participating, in furnishing information relating to such
Holder of Registrable Securities to the Company in writing expressly for use
in such Registration Statement, any preliminary prospectus, the Prospectus or
any amendments or supplements thereto, the Holders of such Registrable
Securities agree, severally and not jointly, to indemnify and hold harmless
the Initial Purchasers and each person, if any, who controls the Initial
Purchasers within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and the Company, and each person, if any,
who controls the Company within the meaning of either such Section, against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto),
or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Holder of Registrable Securities
(which also acknowledges the indemnity provisions herein) and
14
each person, if any, who controls any such Holder of Registrable Securities
expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
Each of the Initial Purchasers agrees to indemnify and hold
harmless the Company, the Holders of Registrable Securities, and each person,
if any, who controls the Company or any Holder of Registrable Securities
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto), or any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity
with written information furnished to the Company by the Initial Purchasers
expressly for use in the Registration Statement (or any amendment thereto)
or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such indemnifying party
from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any
such action; provided, however, that counsel to the indemnifying party shall
-------- -------
not (except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise
or consent (i) includes an unconditional release of each indemnified party
from all liability arising out of such litigation, investigation, proceeding
or claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
15
(e) If the indemnification provided for in this Section 6 is for
any reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Company on the one hand and the Holders
of the Registrable Securities or the Initial Purchasers on the other hand
shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or by the Holder of the Registrable Securities or the Initial
Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses
incurred by an indemnified party and referred to above in this Section 6(e)
shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, neither the
Holder of any Registrable Securities nor the Initial Purchasers shall be
required to indemnify or contribute any amount in excess of the amount by
which the total price at which the Registrable Securities sold by such
Holder of Registrable Securities or underwritten by the Initial Purchasers,
as the case may be, and distributed to the public were offered to the public
exceeds the amount of any damages that such Holder of Registrable Securities
or the Initial Purchasers 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.
For purposes of this Section 6(e), each person, if any, who
controls the Initial Purchasers or any Holder of Registrable Securities
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Initial
Purchasers or such Holder, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Company.
16
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 cooperate
with any Holder of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably request in
writing (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 and Rule 144A under the
Securities Act and customarily taken in connection with sales pursuant to
such exemptions. Upon the written request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as
to whether it has complied with such reporting requirements, unless such a
statement has been included in the Company's most recent report required to
be filed and filed pursuant to Section 13 or Section 15(d) of Exchange 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
Shares) under any section of the Exchange Act.
Section 8. Miscellaneous.
-------------
(a) No Conflicting Agreements. The Company is not, as of the
-------------------------
date hereof, a party to, nor shall it, on or after the date of this
Agreement, enter into, any agreement with respect to its securities that
conflicts with the rights granted to the Holders of Registrable Securities
in this Agreement. The Company represents and warrants that the rights
granted to the Holders of Registrable Securities hereunder do not in any way
conflict with the rights granted to the holders of the Company's securities
under any other agreements.
(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 a majority of the then outstanding Underlying Common Shares
constituting Registrable Securities (with Holders of Securities deemed to be
the Holders, for purposes of this Section, of the number of outstanding
shares of Underlying Common Shares into which such Securities are or would be
convertible or exchangeable 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 of Registrable Securities whose securities are being
sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders of Registrable Securities 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. 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.
17
(c) 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:
(x) if to a Holder of Registrable Securities, at the most current
address given by such Holder to the Company in a Notice and Questionnaire
or any amendment thereto;
(y) if to the Company, to:
Ohio Casualty Company
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
(z) if to the Initial Purchasers, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
4 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
McDonald Investments Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
(d) Approval of Holders. Whenever the consent or approval of
-------------------
Holders of a specified percentage of Registrable Securities is required
hereunder, the Registrable Securities held by the Company or its Affiliates
(other than the Initial Purchasers or subsequent Holders of
18
Registrable Securities 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.
(e) 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.
(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 original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
--------
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) 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.
(j) 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.
(k) Termination. This Agreement and the obligations of the parties
-----------
hereunder shall terminate upon the expiration of the Effectiveness Period,
except for any liabilities or obligations under Sections 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.
19
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
OHIO CASUALTY CORPORATION
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
Confirmed and accepted as of the date
first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director
MCDONALD INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
20