EXHIBIT 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
CERTEGY INC.,
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
AND
THE OTHER INITIAL PURCHASERS REFERRED TO HEREIN
DATED AS OF SEPTEMBER 10, 2003
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made
and entered into as of September 10, 2003, by and among Certegy Inc., a Georgia
corporation (the "Company"), Bear, ▇▇▇▇▇▇▇ & Co. Inc. and the other parties
referred to in Schedule A to the Purchase Agreement (as defined below (each, an
"Initial Purchaser" and, collectively, the "Initial Purchasers"), each of whom
has agreed to purchase the Company's 4.75% Notes due 2008 (the "Initial Notes")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement,
dated as of September 3, 2003 (the "Purchase Agreement"), by and among the
Company and the Initial Purchasers (i) for the benefit of the Initial Purchasers
and (ii) for the benefit of the holders from time to time of the Notes
(including the Initial Purchasers). In order to induce the Initial Purchasers to
purchase the Initial Notes, the Company has agreed to provide the registration
rights set forth in this Agreement. The execution and delivery of this Agreement
is a condition to the obligations of the Initial Purchasers set forth in Section
5 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Interest: As defined in Section 5 hereof.
Affiliate: As defined in Rule 144 under the Securities Act.
Agreement: As defined in the preamble.
Base Interest: The interest that would otherwise accrue on the
Notes under the terms thereof and the Indenture, without giving effect
to the provisions of this Agreement.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Company: As defined in the preamble.
Consummate: A registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence of (i)
the filing and effectiveness under the Securities Act of the Exchange
Offer Registration Statement relating to the Exchange Notes to be
issued in the Exchange Offer, (ii) the maintenance of such Registration
Statement continuously effective and the keeping of the Exchange Offer
open for a period not less than the minimum period required pursuant to
Section 3(b) hereof, and
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(iii) the delivery by the Company to the Registrar under the Indenture
of Exchange Notes in the same aggregate principal amount as the
aggregate principal amount of Initial Notes that were tendered by
Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Notes: The 4.75% Notes due 2008 to be issued pursuant
to the Indenture and to be offered to Holders in exchange for Transfer
Restricted Securities as contemplated by this Agreement.
Exchange Offer: The exchange offer by the Company of the
Exchange Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) pursuant to which the Company will offer
all Holders that are not prohibited by law or policy of the Commission
from participating in such offer, the opportunity to exchange all
outstanding Transfer Restricted Securities held by such Holders for
Exchange Notes in an aggregate principal amount equal to the aggregate
principal amount of the Transfer Restricted Securities tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Holder: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of September 10, 2003,
among the Company and SunTrust Bank, as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms
thereof.
Initial Notes: As defined in the preamble.
Initial Placement: The issuance and sale by the Company of the
Initial Notes to the Initial Purchasers pursuant to the Purchase
Agreement.
Initial Purchasers: As defined in the preamble.
NASD: National Association of Securities Dealers, Inc.
Notes: The Initial Notes and the Exchange Notes.
Participating Broker-Dealer: Any Broker-Dealer that (i) holds
Notes that were acquired for its own account as a result of
market-making activities or other trading activities (other than Notes
acquired directly from the Company or any of its Affiliates)
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that intends to participate in the Exchange Offer or (ii) holds
Exchange Notes acquired in the Exchange Offer.
Person: An individual, partnership, corporation, limited
liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared
effective, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
Purchase Agreement: As defined in the preamble.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Company relating to (a) an offering of Exchange Notes pursuant to an
Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement,
which is filed pursuant to the provisions of this Agreement, in each
case, including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
Transfer Restricted Securities: Each Initial Note, until the
earliest to occur of (a) the date on which such Initial Note is
exchanged in the Exchange Offer and entitled to be resold to the public
by the Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (b) the date on which such Initial
Note has been effectively registered under the Securities Act and
disposed of in accordance with a Shelf Registration Statement and (c)
the date on which such Initial Note may be resold to the public
pursuant to Rule 144 under the Securities Act, and each Exchange Note
until the date on which such Exchange Note is disposed of or by a
Participating Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including
delivery of the Prospectus contained therein).
Trust Indenture Act: The Trust Indenture Act of 1939 (15
U.S.C. Section 77aaa to 77bbbb) as in effect on the date of the
Indenture.
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Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities
entitled to the benefits of this Agreement are the Transfer Restricted
Securities.
(b) Holders of Transfer Restricted Securities. A Person
is deemed to be a holder of Transfer Restricted Securities (each, a "Holder")
whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures set forth in
Section 6(a)(i), below have been complied with), the Company shall (i) cause to
be filed with the Commission as soon as practicable after the Closing Date, but
in no event later than 120 days after the Closing Date, a Registration Statement
under the Securities Act relating to the Exchange Notes and the Exchange Offer,
(ii) use its reasonable best efforts to cause such Registration Statement to
become effective at the earliest possible time, but in no event later than 150
days after the Closing Date, (iii) in connection with the foregoing, file (A)
all pre-effective amendments to such Registration Statement as may be necessary
in order to cause such Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Registration Statement pursuant
to Rule 430A under the Securities Act and (C) all necessary filings in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The Exchange Offer
Registration Statement shall be on the appropriate form permitting (i)
registration of the Exchange Notes to be offered in exchange for the Transfer
Restricted Securities and (ii) to permit resales of Exchange Notes held by
Participating Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall use its reasonable best efforts to
cause the Exchange Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less than the minimum
period required under applicable federal and state securities laws to Consummate
the Exchange Offer; provided, however, that in no event shall such period be
less than 30 days after the date notice of the Exchange Offer is mailed to the
Holders. The Company shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Exchange Notes shall be included in the Exchange Offer Registration Statement.
The Company shall use its reasonable best efforts to cause the Exchange Offer to
be Consummated on the earliest practicable date after the Exchange Offer
Registration Statement is declared effective, but in no event later than 180
days after the Closing Date (the "Consummation Deadline").
(c) The Company shall indicate in a "Plan of
Distribution" section contained in the Prospectus forming a part of the Exchange
Offer Registration Statement that any
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Participating Broker-Dealer may exchange such Initial Notes pursuant to the
Exchange Offer; however, such Participating Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Securities Act and must, therefore,
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Notes received by such Participating
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Participating Broker-Dealers that the Commission may require in order to permit
such resales pursuant thereto, but such "Plan of Distribution" shall not name
any such Participating Broker-Dealer or disclose the amount of Notes held by any
such Participating Broker-Dealer except to the extent required by the Commission
as a result of a change in policy after the date of this Agreement.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by and subject to the provisions of Section 6(a) and Section
6(c) below and in conformity with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, to the extent necessary to ensure that it is
available for resales of Notes acquired by Participating Broker Dealers for a
period ending on the earlier of (i) 180 days from the date on which the Exchange
Offer Registration Statement is declared effective and (ii) the date on which a
Participating Broker-Dealer is no longer required to deliver a prospectus in
connection with market-making or other trading activities.
The Company shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such 180-day (or shorter as provided in the foregoing sentence) period in
order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not
required to file an Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) (i) have been
complied with), (ii) for any reason the Exchange Offer is not Consummated by the
Consummation Deadline, or (iii) any Holder shall notify the Company prior to the
20th day following Consummation of the Exchange Offer that (A) such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange Notes acquired by
it in the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and holds Initial Notes acquired directly from the Company or
one of its Affiliates, then, the Company shall:
(x) cause to be filed a shelf registration statement
pursuant to Rule 415 under the Securities Act, which may be an
amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement") on or prior to 30 days after
the earliest to occur of (1) the date on which the Company determines
that it is not required to file the Exchange Offer Registration
Statement and (2) the date on which the
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Company receives notice from a Holder as contemplated by clause
(a)(iii) above, and (3) the Consummation Deadline (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the
Holders of which shall have provided the information required pursuant
to Section 4(b) hereof; and
(y) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 90th day after the Shelf Filing Deadline.
To the extent necessary to ensure that the Shelf Registration Statement is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Company shall
use reasonable best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Notes by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years following the Closing Date (or one year if such
Shelf Registration Statement is filed at the request of a Holder as contemplated
by clause (a)(iii) above (in each case, as such time may be extended pursuant to
Section 6(c)(i) following the Closing Date, or such shorter period as will
terminate when all the Transfer Restricted Securities covered by such Shelf
Registration Statement (x) have been sold pursuant thereto or (y) are no longer
restricted securities (as defined in Rule 144 under the Securities Act).
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of Transfer
Restricted Securities may include any of its Transfer Restricted Securities in
any Shelf Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 15 days after receipt of
a request therefor, the information required by Item 507 or 508 of Regulation
S-K, as applicable, of the Securities Act with respect to such Holder's Notes
for use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein and any other such information as the
Company may reasonably request to fulfill its obligations hereunder. A Holder of
Transfer Restricted Securities shall not be entitled to Additional Interest
pursuant to Section 5 hereof unless, and until the date, such Holder shall have
provided all such information. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST
If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for
such filing in Sections 3(a) and 4(a) of this Agreement, as applicable, (ii) any
of such Registration Statements has not been declared effective by the
Commission on or prior to the date specified for such effectiveness in Section
3(a) and 4(a), as applicable (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not
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been Consummated by the Consummation Deadline or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose during the
period specified therein without being succeeded within 5 business days by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then the Company hereby
agrees to pay to each Holder of Transfer Restricted Securities, as additional
amounts for such Registration Default, additional interest ("Additional
Interest"), in addition to the Base Interest, which Additional Interest shall
accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of any such Registration Default and a rate of 0.50%
per annum thereafter for any remaining time at the end of each subsequent 90-day
period until all Registration Defaults have been cured; provided, however, that
if after all such Registration Defaults have been cured, a different
Registration Default occurs, the interest rate borne by the relevant Transfer
Restricted Securities shall again be increased pursuant to the foregoing
provisions. Notwithstanding anything to the contrary set forth herein, (1) upon
filing of the Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable in the case of (iv) above, the Additional
Interest payable with respect to the Transfer Restricted Securities as a result
of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued Additional Interest shall be paid to the Holders
entitled thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth in the
Indenture and the Notes. All obligations of the Company set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such Note
shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company shall (x) comply with all of the applicable
provisions of Section 6(c) below, (y) use reasonable best efforts to effect such
exchange and to permit the resale of Exchange Notes by Participating
Broker-Dealers being sold in accordance with the intended method or methods of
distribution thereof, and (z) shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to
the Company there is a question as to whether the Exchange Offer is
permitted by applicable law, the Company hereby agrees to seek a
no-action letter or other favorable decision from the Commission
allowing the Company to Consummate an Exchange Offer for such Initial
Notes. The Company hereby agrees to pursue the issuance of such a
decision to the Commission staff level but shall not be required to
take commercially unreasonable action to effect a change of Commission
policy. The Company hereby agrees, however, to (A) participate
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in telephonic conferences with the Commission, (B) deliver to the
Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded
that such an Exchange Offer should be permitted and (C) diligently
pursue a favorable resolution by the Commission staff of such
submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each Holder of
Transfer Restricted Securities shall furnish, upon the request of the
Company, prior to the Consummation thereof, a written representation to
the Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (which may include any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Initial Notes acquired by such Holder directly from the
Company.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company shall:
(i) comply with all the provisions of Section
6(c) below and shall use its reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the
Company pursuant to Section 4(b) hereof), and pursuant thereto the
Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof,
and
(ii) issue, upon the request of any Holder of
Initial Notes covered by any Shelf Registration Statement contemplated
by this Agreement, Exchange Notes, having an aggregate principal amount
equal to the aggregate principal amount of Initial Notes sold pursuant
to the Shelf Registration Statement and surrendered to the Company
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by such Holder for cancellation; the Company shall register such
Exchange Notes on the Shelf Registration Statement for this purpose and
issue the Exchange Notes to the purchaser(s) in the names as such
purchaser(s) shall designate and shall pay any transfer taxes or other
fees charged in connection with such registration of Exchange Notes.
(c) General Provisions. In connection with any
Registration Statement and any Prospectus required by this Agreement to permit
the sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Notes by Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its reasonable best
efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for
their intended purpose(s) as soon as practicable thereafter; provided,
however, that notwithstanding the foregoing, the Company may allow any
such Registration Statement to cease to become effective and usable if
(A) the board of directors of the Company determines in good faith that
it is in the best interests of the Company not to disclose the
existence of or facts surrounding any proposed or pending material
corporate transaction involving the Company, and the Company notifies
the Holders within two business days after the Board of Directors makes
such determination, or (B) the Prospectus contained in any such
Registration Statement contains an untrue statement of the material
fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading, provided that, the periods referred to in
Sections 3(c) and 4(a) hereof during which such Exchange Offer
Registration Statement, as the case may be, is required to be effective
and usable shall be extended by the number of days during which such
Registration Statement was not effective or usable pursuant to the
foregoing provisions;
(ii) subject to Section 6(c)(i), prepare and file
with the Commission such amendments and post-effective amendments to
the Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 3 or
4 hereof, as applicable, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the 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 to comply fully with
the applicable provisions of Rules 424, 430A and 462, as applicable,
under the Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
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distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if
requested by such Holder, to confirm such advice in writing, (A) when
the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the suspension by
any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, and (D)
of the existence of any fact or the happening of any event that makes
any statement of a material fact made in the Registration Statement,
the Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws,
the Company shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or
event contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(v) furnish without charge to each of the
Initial Purchasers, each selling Holder named in any Registration
Statement, and each of the underwriter(s), if any, before filing with
the Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (excluding all documents
incorporated by reference in such Registration Statement at the time of
or after the initial filing of such Registration Statement as a result
of requirements for periodic reporting under the Exchange Act), which
documents will be subject to the review of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at
least five business days, and the Company will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus (excluding all such
documents incorporated by reference as a result of requirements for
periodic reporting under the Exchange Act) to which an Initial
Purchaser owning Transfer Restricted Securities covered by such
Registration Statement (in the case of a Shelf Registration
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Statement) or the Participating Broker-Dealer (in the case of an
Exchange Offer Registration Statement), if any, shall reasonably object
in writing within five business days after the receipt thereof (such
objection to be deemed timely made upon confirmation of telecopy
transmission within such period). The objection of a Participating
Broker-Dealer or selling Holder shall be deemed to be reasonable if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission;
(vi) promptly prior to the filing of any document
that is to be incorporated by reference into a Registration Statement
or Prospectus, provide copies of such document to the Initial
Purchasers, each selling Holder named in any Registration Statement,
and to the underwriter(s), if any, make the Company's representatives
available for discussion of such document and other customary due
diligence matters, and include such information in such document prior
to the filing thereof as such Holders, any Participating Broker-Dealers
or their respective counsel reasonably may request, provided, however,
that the information gathering referred to in this Section 6(c)(vi) and
in Section 6(c)(vii) below (x) shall be coordinated by one counsel, who
shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP (unless another firm shall be
chosen by the holders of a majority in principal amount of the Notes),
and (y) shall be subject to executing a confidentiality undertaking in
customary form and with respect to confidential and/or proprietary
information of the Company;
(vii) (A) in the case of an Exchange Offer, make
available at reasonable times for inspection by any Participating
Broker-Dealer, and any attorney or accountant retained by any such
Participating Broker-Dealer, and (B) in the case of a Shelf
Registration Statement furnish Holders, and any attorney or accountant
retained by such Holders or any of the underwriter(s), all financial
and other records, pertinent corporate documents and properties of the
Company reasonably requested by any such person and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such Participating Broker-Dealer, selling Holder,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness, in
each case, subject to executing a confidentiality undertaking in
customary form and with respect to confidential information and/or
proprietary information of the Company;
(viii) (A) in the case of an Exchange Offer, to any
Participating Broker-Dealer, if such Participating Broker-Dealer has
given prior written or oral notification to the Company that it will
participate in the Exchange Offer, or (B) in the case of a Shelf
Registration Statement, any Holder, promptly incorporate in any
Registration Statement or Prospectus included therein, pursuant to a
supplement or post-effective amendment if necessary, such information
as such Participating Broker-Dealer or selling Holders may reasonably
request to have included therein concerning themselves, including,
without limitation, information relating to the "Plan of Distribution"
of the Transfer Restricted Securities, information with respect to the
principal amount of the Transfer Restricted Securities being sold, the
purchase price being paid therefor and any other terms of the offering
of the Transfer Restricted Securities to be sold in such offering; and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as
12
practicable after the Company is notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment;
(ix) cause the Transfer Restricted Securities
covered by the Registration Statement to be rated with the appropriate
rating agencies, if so requested by the Holders of a majority in
aggregate principal amount of Notes covered thereby or the
underwriter(s), if any;
(x) furnish in the case of a Shelf Registration
Statement and, to the extent that the Company is required to maintain
an effective Exchange Offer Registration Statement for any
Participating Broker-Dealer, to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including financial statements and schedules, all
documents incorporated by reference therein and all exhibits (without
documents incorporated therein by reference or exhibits incorporated
thereto, unless requested);
(xi) deliver to each selling Holder, each
Participating Broker-Dealer and any underwriter(s), without charge, as
many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons reasonably may
request; the Company hereby consents to the use in accordance with law
of the Prospectus and any amendment or supplement thereto by each of
the selling Holders, any such Participating Broker-Dealer and each of
the underwriter(s), if any, in connection with the offering and the
sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto, subject to compliance with
paragraph (d) of this Section 6;
(xii) in the case of a Shelf Registration
Statement and, to the extent that the Company is required to maintain
an effective Exchange Offer Registration Statement for any
Participating Broker-Dealer, enter into such customary agreements
(including an underwriting agreement), and make such customary
representations and warranties, and take all such other customary
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such
extent as may be reasonably requested by any Initial Purchaser or by
any Holder or underwriter in connection with any sale or resale
pursuant to any Registration Statement contemplated by this Agreement,
provided that, the Company, in the case of a Shelf Registration
Statement, may delay entering into such agreement if the Board of
Directors of the Company determines in good faith that it is in the
best interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company; and whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten
Registration, the Company shall:
(A) furnish upon request of any Holder in
primary underwritten offerings, upon the date of the
Consummation of the Exchange Offer or upon effectiveness of
the Shelf Registration Statement:
13
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (y) the President or any
Vice President and (z) a principal financial or
accounting officer of the Company, confirming, as of
the date thereof, the matters set forth in paragraphs
(i), (ii) and (iii) of Section 5(f) of the Purchase
Agreement and such other matters as such parties may
reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company, covering
the matters set forth in paragraphs (c) and (d) of
Section 5 of the Purchase Agreement and such other
matters as such parties may reasonably request, and
in any event including a statement to the effect that
such counsel has participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants
for the Company, the Initial Purchasers'
representatives and the Initial Purchasers' counsel
in connection with the preparation of such
Registration Statement and the related Prospectus and
have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
upon facts provided to such counsel by officers or
other representatives of the Company and without
independent check or verification), no facts came to
such counsel's attention that caused such counsel to
believe that the applicable Registration Statement,
at the time such Registration Statement or any
post-effective amendment thereto became effective,
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation, contained
an untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of
the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated
as of the date of Consummation of the Exchange Offer
or the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the
Company's
14
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters by underwriters in connection with
primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered
pursuant to Section 5(a) of the Purchase Agreement,
without exception;
(B) set forth in full or incorporate by
reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said
Section;
(C) deliver such other documents and
certificates as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting agreement
or other agreement entered into by the Company pursuant to
this clause (xii), if any; and
(D) if at any time during, in the case of an
Exchange Offer, the 180-day period contemplated by Section
3(c), or in the case of a Shelf Registration Statement, the
periods contemplated by Section 4(a) hereof, the
representations and warranties of the Company contemplated in
clause (A)(1) above cease to be true and correct, the Company
shall so advise each selling Holder promptly and, if requested
by such Persons, shall confirm such advice in writing;
(xiii) prior to any public offering of Notes,
cooperate with the selling Holders or any Participating Broker-Dealers
and their respective counsel in connection with the registration and
qualification (or exemption from such registration and qualification or
preemption of such registration and qualification by federal law) of
the Notes under the securities or Blue Sky laws of such jurisdictions
as the selling Holders, Participating Broker-Dealers or underwriter(s)
may reasonably request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions
of the Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required to
register or qualify as a foreign corporation where it is not then so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not then so subject;
(xiv) in connection with any sale of Notes that
will result in such Notes no longer being Transfer Restricted
Securities, cooperate with the selling Holders, to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register, subject to compliance with the Indenture,
such Notes to be in such denominations and in such names as the Holders
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such Holders;
(xv) use its reasonable best efforts to cause the
Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller
15
or sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the
proviso contained in clause (xii), above;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of the
Registration Statement covering such Notes and provide the Trustee
under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depositary Trust Company;
(xvii) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;
(xviii) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the Commission, and
make generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period beginning with
the first month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under
the Trust Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders of Notes to
effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and to execute and use its reasonable best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner;
(xx) cause all Transfer Restricted Securities
covered by the Registration Statement to be listed on each securities
exchange on which similar securities issued by the Company are then
listed if requested by the Holders of a majority in aggregate principal
amount of Initial Notes; and
(xxi) provide promptly to each Holder upon request
each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
(d) Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referred to in Section
6(c)(iii)(C) or any notice from the Company of the existence of any fact of the
kind described in Section 6(c)(iii)(D) hereof (in each case, a
16
"Suspension Notice"), such Holder will keep such Suspension Notice confidential
and forthwith discontinue disposition of Transfer Restricted Securities pursuant
to the applicable Registration Statement until (i) such Holder has received
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(iv) hereof, or (ii) such Holder is advised in writing by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus (in each case, the "Recommencement Date"). Each Holder receiving a
Suspension Notice hereby agrees that it will promptly, either (i) destroy any
Prospectuses, other than permanent file copies then in such Holder's possession
which have been replaced by the Company, with more recently dated Prospectuses
or (ii) deliver to the Company (at the Company's expense) all copies, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Transfer Restricted Securities that was current at the time of
receipt of the Suspension Notice. The time period regarding the effectiveness of
such Registration Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by a number of days equal to the number of days in the period
from and including the date of the delivery of the Suspension Notice to the date
of delivery of the Recommencement Date. Each Holder agrees to deliver the
Prospectus, if required by the Securities Act, and, if so required, in the
manner and at the time required by the Securities Act. Each Holder further
agrees that it will use the Prospectus and any amendment or supplement thereto,
and make any offer and sale of the Notes, only in compliance with the terms of
this Agreement and all laws and regulations applicable to it, and will, in the
case of a Participating Broker-Dealer, conform its offering and sale of Notes to
the plan of distribution set forth in the Prospectus to the extent that it
accurately reflects the distribution plans described in the information provided
to the Company pursuant to Section 4(b).
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of
or compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made by any Initial Purchaser or Holder with the NASD (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all fees
and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates
for the Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all fees and
disbursements of counsel for the Company and, subject to Section 7(b) below, the
Holders of Transfer Restricted Securities; and (v) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance).
(b) The Company will, in any event, bear its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company. Except as expressly provided in this
Agreement, the Company shall not be responsible for the costs incurred by the
Initial Purchasers in connection with this Agreement.
17
(c) In connection with any Registration Statement
required by this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the Company will
reimburse the Initial Purchasers and the Holders of Transfer Restricted
Securities being tendered in the Exchange Offer and/or resold pursuant to the
"Plan of Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP or such other counsel as may be chosen by the
Holders of a majority in principal amount of the Transfer Restricted Securities
for whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i)
each Holder, (ii) each person, if any, who controls (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) any Holder
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a "controlling person") and (iii) the respective officers, directors,
partners, employees, representatives and agents of any Holder (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to as an
"Indemnified Holder"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, judgments, actions and expenses
(including without limitation and as incurred, reimbursement of all reasonable
costs of investigating, preparing, pursuing, settling, compromising, paying or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Indemnified Holder), joint or several,
directly or indirectly caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (or any amendment or
supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or expenses are caused by an untrue statement or omission or alleged
untrue statement or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in writing to the
Company by any of the Holders expressly for use therein; provided, however, that
the Company will not be liable to any Indemnified Holder (in its capacity as
Holder) or underwriter (or any person who controls such party within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act) with
respect to any untrue statement or alleged untrue statement or omission or
alleged omission of a material fact made in any preliminary Prospectus to the
extent that the Company shall sustain the burden of proving that any such loss,
liability, claim, damage or expense resulted from the fact that such Indemnified
Holder (in its capacity as Holder), or underwriter, as the case may be, sold
Transfer Restricted Securities to a Person to whom such Indemnified Holder (in
its capacity as Holder) or underwriter, as the case may be, failed to send or
give, at or prior to the written confirmation of sale of such Securities a copy
of the final Prospectus (as amended or supplemented) if the Company has
previously furnished copies thereof (sufficiently in advance of the closing of
such sale to allow for distribution of the final Prospectus in a timely manner)
to such Holder (in its capacity as Holder) or underwriter, as the case may be,
and the loss, liability, claim, damage or expense of such Holder (in its
capacity as Holder) or underwriter, as the case may be, resulted solely from an
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact contained in or omitted from such preliminary Prospectus which
was corrected in
18
the final Prospectus. This indemnity agreement shall be in addition to any
liability which the Company may otherwise have.
(b) In case any action or proceeding (including any
governmental or regulatory investigation or proceeding) shall be brought or
asserted against any of the Indemnified Holders with respect to which indemnity
may be sought against the Company, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company
in writing and the Company shall have the right to assume the defense thereof,
including the employment of counsel reasonably satisfactory to such Indemnified
Holder; provided that, the delay or failure to give such notice shall not
relieve the Company from any liability that it may have on account of the
indemnity under this Section 8, except to the extent that such delay or omission
materially adversely affects the ability of the Company to defend or assume the
defense of such action or proceeding. Upon receiving such notice, the Company
shall be entitled to participate in any such action or proceeding and/or to
assume, at its sole expense, the defense thereof, with counsel reasonably
satisfactory to such Indemnified Holder (who shall not, except with the consent
of the Indemnified Holder to be represented, be counsel to the Company or any of
the Subsidiaries) and, after written notice from the Company to such Indemnified
Holder of its election so to assume the defense thereof promptly after receipt
of the notice from the Indemnified Holder of such action or proceeding, the
Company shall not be liable to such Indemnified Holder hereunder for legal
expenses of other counsel subsequently incurred by such Indemnified Holder in
connection with the defense thereof, other than reasonable costs of
investigation, unless (i) the Company agrees in writing to pay such fees and
expenses, or (ii) the Company fails promptly to assume such defense or fails to
employ counsel reasonably satisfactory to such Indemnified Holder, or (iii) the
named parties to any such action or proceeding (including any impleaded parties)
include both such Indemnified Holder and the Company or an affiliate of the
Company, and that Indemnified Holder shall have been advised in writing by
counsel, with a copy of such writing to the Company, that either (x) there may
be one or more legal defenses available to such Indemnified Holder that are
different from or additional to those available to the Company or such affiliate
or (y) a conflict may exist between such Indemnified Holder and the Company or
such affiliate. In the event of any of clause (i), (ii) and (iii) of the
immediately preceding sentence, the Company shall not have the right to assume
the defense thereof on behalf of the Indemnified Holder and such Indemnified
Holder shall have the right to employ its own counsel (who shall not, except
with the Company's consent, be counsel to the Company) in any such action and
the reasonable fees and expenses of such counsel shall be paid, as incurred, by
the Company, subject to repayment to the Company if it is ultimately determined
that an Indemnified Holder is not entitled to indemnification hereunder, it
being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) for all of the
Indemnified Holder, which firm shall be designated in writing by a majority of
the Indemnified Holders. The Company shall not be liable for any settlement of
any such action or proceeding effected without the Company's written consent,
which consent may not be unreasonably withheld, but if settled with the written
consent of the Company, the Company agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss or liability incurred in such
settlement. The Company shall not, without the prior written consent of each
Indemnified Holder, which consent shall not be unreasonably withheld, settle,
19
compromise or consent to the entry of any judgment in or otherwise seek to
terminate any pending or threatened action, claim, suit, investigation or other
proceeding in respect of which any Indemnified Holder is or could have been a
party and indemnification or contribution could have been sought hereunder by
such Indemnified Holder, unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Holder from
all liability on claims that are the subject matter of such proceeding.
(c) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
directors, officers, and any person controlling (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) the Company, and the
officers, directors, partners, employees, representatives and agents of each
such person, to the same extent as the foregoing indemnity from the Company set
forth in paragraph (a) above, but only with respect to claims and actions based
on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person in respect of which indemnity may be sought against
a Holder of Transfer Restricted Securities, such Holder shall have the rights
and duties given the Company (except that if a Holder shall have assumed the
defense thereof, the Company shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the Company), and the
Company, its directors, any such officers, and each such controlling person
shall have the rights and duties given to the Indemnified Holder by Section 8(b)
above. In no event shall any Holder, its directors, officers or any Person who
controls such Holder have liability under this Section 8(c) for any amounts in
excess of the dollar amount of the proceeds received by such Holder upon the
sale of the Transfer Restricted Securities giving rise to such indemnification
obligation.
(d) If the indemnification provided for in this Section 8
is unavailable to an indemnified party under Section 8(a) or Section 8(c) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the Holders, on
the other hand, from (X) the Initial Placement (which in the case of the Issuer
shall be deemed to be equal to the total gross proceeds from the Initial
Placement as set forth on the cover page of the Offering Memorandum), (Y) the
amount of Additional Interest which did not become payable as a result of the
filing of the Registration Statement resulting in such losses, claims, damages,
liabilities, judgments actions or expenses, and (Z) such Registration Statement,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company, on the one
hand, and of the Indemnified Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnified Holder
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
20
information supplied by the Company or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in the second paragraph of Section 8(a), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company and each Holder of Transfer Restricted Securities
agree that it would not be just and equitable if contribution pursuant to this
Section 8(d) 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
which does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this ▇▇▇▇▇▇▇
▇, ▇▇▇▇ of the Holders (and its related Indemnified Holders) shall be required
to contribute, in the aggregate, any amount in excess of the amount by which the
total price at which the Notes sold by such Holder exceeds the amount of any
damages which 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. The Holders' obligations to
contribute pursuant to this Section 8(d) are several in proportion to the
respective principal amount of Initial Notes held by each of the Holders
hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, (i) to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A unless the Company
furnishes information to the Commission pursuant to Section 13 or 15(d) of the
Exchange Act, and (ii) during any period the Company is subject to Section 13 or
Section 15 (d) of the Exchange Act, to make all filings required thereunder in a
timely manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
21
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided that, such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company hereby agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company will not on
or after the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to or departures from the provisions hereof may not be given unless the Company
has obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or registered;
provided that, with respect to any matter that directly or indirectly affects
the rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser with respect to which such
amendment, qualification, supplement, waiver, consent or departure is to be
effective.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested),
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on
the records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company:
22
Certegy Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
With a copy to:
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if 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.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign acquired Transfer Restricted Securities from such Holder.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(i) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable,
23
the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
(j) Entire Agreement. This Agreement, together with the
Purchase Agreement, the DTC Agreement, the Notes, and the Indenture (as defined
in the Purchase Agreement), is intended by the parties as a final expression of
their agreement and intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[Remainder of Page Intentionally Blank]
24
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CERTEGY INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Corporate Vice President
and Chief Financial Officer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
By: BEAR, ▇▇▇▇▇▇▇ & CO. INC.
As representative for the Initial Purchasers
By: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇
Title: Senior Managing Director