EXHIBIT 10
EXECUTION COPY
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
made and entered into as of April 21, 1998, by and among XEROX
CORPORATION, a New York corporation (the "Company"), ▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and ▇.▇. ▇▇▇▇▇▇
SECURITIES INC. (each an "Initial Purchaser" and together the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated April
16, 1998, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of an aggregate of $880,173,000 principal amount at maturity of the
Company's Convertible Subordinated Debentures due 2018 (the "Debentures") and
the grant by the Company to the Initial Purchasers of the option to purchase all
or any part of an additional $132,025,000 aggregate principal amount at maturity
of Debentures. The Debentures will be convertible into shares of common stock,
par value $1.00 per share, of the Company (the "Common Stock") at the conversion
price set forth in the Pricing Agreement between the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Company has agreed to provide to the Initial Purchasers
and their direct and indirect transferees the registration rights set forth in
this Agreement. The execution of this Agreement is a condition to the closing
under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without definition
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shall have their respective meanings set forth in the Purchase Agreement or
Indenture. As used in this Agreement, the following terms shall have the
following meanings:
"Closing Date" means the Closing Time as defined in the Purchase
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Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the SEC promulgated thereunder.
"Indenture" means the Indenture relating to the Debentures, dated as
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of April 21, 1998 between the Company and The First National Bank of Chicago, as
trustee, as the same may be amended, supplemented, waived or otherwise
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modified from time to time in accordance with the terms thereof.
"Notice and Questionnaire" means a Notice of Registration Statement
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and Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
"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 430A), as amended or supplemented
by any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including post-
effective amendments and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
"Registrable Securities" means all Debentures and shares of Common
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Stock that are Restricted Securities.
"Registration Expenses": See Section 5 hereof.
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"Registration Statement" means any registration statement of the
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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 material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
"Restricted Securities" means any and all Debentures upon original
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issuance thereof (and any shares of Common Stock issued from time to time upon
conversion thereof other than pursuant to an effective registration statement
under the Securities Act) and at all times subsequent thereto until, as to any
Restricted Security, (i) the sale of such Restricted Security has been
effectively registered under the Securities Act and such Restricted Security has
been disposed of in accordance with the Registration Statement relating thereto
or (ii) it is distributed to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
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"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations promulgated by the SEC thereunder.
"Shelf Registration": See Section 3 hereof.
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"Special Counsel" means Cravath, Swaine & ▇▇▇▇▇, special counsel to
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the Initial Purchasers or such other special counsel as may be designated by the
holders of a majority in aggregate principal amount at maturity of Registrable
Securities outstanding (provided that holders of Common Stock issued upon the
conversion of the Debentures shall be deemed for this purpose to be holders of
the aggregate principal amount at maturity of Debentures from which such Common
Stock was converted).
"TIA" means the Trust Indenture Act of 1939, as amended.
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2. Securities Subject to this Agreement. (a) Securities. The
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securities entitled to the benefits of this Agreement are the Registrable
Securities.
(b) Holders of Registrable Securities. A Person is deemed to be a
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holder of Registrable Securities whenever such Person beneficially owns
Registrable Securities; provided that only Registrable Securities of holders who
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are registered holders of Registrable Securities shall be counted for purposes
of calculating any proportion of holders of Registrable Securities entitled to
take action or give notice pursuant to this Agreement.
3. Shelf Registrations. (a) Shelf Registrations. As promptly as
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practicable and in no event later than 90 days after the Closing Date, the
Company shall prepare and file with the SEC a Registration Statement under the
Securities Act for an offering to be made on a continuous basis pursuant to Rule
415 (or any similar rule that may be adopted by the SEC) under the Securities
Act covering all the Registrable Securities then outstanding and all Registrable
Securities that may be issued upon the conversion of Debentures into shares of
Common Stock (the "Shelf Registration").
(b) The Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by holders of Registrable Securities in the manner or manners designated
by them.
(c) (1) Not less than 30 calendar days prior to the effectiveness of
the Shelf Registration, the Company
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shall mail the Notice and Questionnaire to the holders of Registrable
Securities. No holder shall be entitled to be named as a selling securityholder
in the Shelf Registration, and no holder shall be entitled to use the Prospectus
forming a part thereof for resales of Registrable Securities at any time, unless
such holder has returned a completed and signed Notice and Questionnaire to the
Company by the deadline for response set forth therein; provided, however, that
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holders of Registrable Securities shall have at least 28 calendar 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.
(2) After the Shelf Registration has become effective, the Company
shall, upon the request of any holder of Registrable Securities that has not
returned a completed Notice and Questionnaire, promptly send a Notice and
Questionnaire to such holder. The Company shall not be required to take any
action to name such holder as a selling securityholder in the Shelf Registration
or to enable such holder to use the Prospectus forming a part thereof for
resales of Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company.
(d) The Company shall use its reasonable efforts to cause the Shelf
Registration to become effective under the Securities Act in accordance with
Section 3(a) hereof and shall keep the Shelf Registration continuously effective
for a period of two years from the Closing Date or such shorter period, which
will terminate when all Registrable Securities are no longer Restricted
Securities. The Company shall as expeditiously as possible supplement or make
amendments to any Shelf Registration (i) if required by the rules, regulations
or instructions applicable to the registration form used by the Company, (ii) if
required by the Securities Act and (iii) in order to ensure that all the
Registrable Securities then outstanding and all Registrable Securities that may
be issued upon the conversion of Debentures into shares of Common Stock are
covered by such Shelf Registration, including taking any action reasonably
necessary to identify as a selling securityholder in the Shelf Registration any
holder of Registerable Securities that delivers an executed Notice and
Questionnaire after the Shelf Registration becomes effective, within 30 days
after receipt of such Notice and Questionnaire.
4. Registration Procedures. In connection with the registration
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obligations pursuant to Section 3 hereof, the Company shall use its reasonable
efforts to effect such
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registrations to permit the sale of all Registrable Securities in accordance
with the then intended method or methods of disposition thereof, and pursuant
thereto the Company shall as expeditiously as possible:
(a) prepare and file with the SEC, within the time period specified in
Section 3, a Registration Statement or Registration Statements on any
appropriate form under the Securities Act, which form shall be available
for the sale of all Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof, and
use its reasonable efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; provided,
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however, that before filing a Registration Statement or Prospectus or any
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amendments or supplements thereto, the Company shall furnish to the Special
Counsel, copies of the Registration Statement or Prospectus and all such
documents in the form proposed to be filed at least two business days prior
thereto which documents will be subject to the review of the Special
Counsel and the Company shall not file any such Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which the
Special Counsel shall reasonably object on a timely basis, unless the
Company is advised by their counsel that such Registration Statement or
amendment thereto or any Prospectus or supplement thereto is required to be
filed by applicable law;
(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 for the applicable 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;
(c) promptly notify Special Counsel to the holders of Registerable
Securities and, with respect to any event contemplated by clauses (i),
(iv), (v), (vi) or (vii) hereof, notify each holder that has returned a
completed and signed Notice and Questionnaire to the Company (and in each
case, if requested, confirm any oral or telephonic notice in writing), (i)
when a Prospectus or any Prospectus supplement or post-effective amendment
related to such Registrable Securities (A) has been filed, and (B) with
respect to
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a Registration Statement or any post-effective amendment related to such
Registrable Securities, when the same has become effective, (ii) of the
receipt of any comments from the SEC, (iii) of any request by the SEC for
amendments or supplements to a Registration Statement or related Prospectus
or for additional information, (iv) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (v) if at any time the
representations and warranties of the Company contained in any agreement
entered pursuant to paragraph (l) below in connection with the sale of
Restricted Securities by selling holders thereof cease to be true and
correct, (vi) 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 or exchange in
any jurisdiction of the United States of America or the initiation of any
proceeding for such purpose, (vii) of the happening of any event that makes
any statement of a material fact made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or that requires the making of any
changes in a Registration Statement or related Prospectus so that such
documents will 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 light of the circumstances under which they
were made, not misleading (provided that the timely filing of a report
under the Securities Exchange Act of 1934 which is incorporated by
reference in the Registration Statement and related Prospectus shall
constitute effective notice under this subsection (vii)), and (viii) of the
determination of the Company that a post-effective amendment to a
Registration Statement would be appropriate;
(d) use every reasonable effort 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 or exchange in any jurisdiction
of the United States of America, as promptly as practicable;
(e) if reasonably requested by any holder of Registrable Securities
covered by a Registration Statement, (i) promptly incorporate in a
Prospectus supplement or post-effective amendment such information
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as such holder reasonably requests to be included therein as is required by
applicable law; provided that the Company may, to the extent it reasonably
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objects to the inclusion of any such information, require such holder to
obtain an opinion of counsel to the effect that such information is so
required, (ii) make all required filings of such Prospectus supplement or
such post-effective amendment as soon as the Company has received
notification of the matters to be incorporated in such Prospectus
supplement or such post-effective amendment, and (iii) supplement or make
amendments to any Registration Statement if reasonably requested by any
holder of Registrable Securities covered by such Registration Statement as
is required by applicable law;
(f) furnish to each selling holder of Registrable Securities upon
request, and the Special Counsel, without charge, at least one conformed
copy of the Registration Statement or Statements and any post-effective
amendment thereto, including financial statements and schedules, without
charge, as well as all documents incorporated therein by reference or
deemed incorporated therein by reference and all exhibits (including those
previously furnished or incorporated by reference), at the earliest
practicable time under the circumstances after the filing of such documents
with the SEC;
(g) deliver to each selling holder of Registrable Securities and the
Special Counsel, without charge, as many copies of the Prospectus or
Prospectuses (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company
consents to the use of such Prospectus or any amendment or supplement
thereto in accordance with applicable law by each of the selling holders of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or
supplement thereto in accordance with applicable law;
(h) prior to any public offering of Registrable Securities, use its
best efforts to register or qualify or cooperate with the selling holders
of Registrable Securities and Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale, as the
case may be, under the securities or Blue Sky laws of such state or
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local jurisdictions in the United States as any seller reasonably requests
in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the applicable Registration
Statement; provided, however, that the Company will not be required to (A)
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qualify generally to do business in any jurisdiction where it is not then
so qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or (C)
register or qualify securities prior to the effective date of any
Registration Statement under Section 3 hereof;
(i) cooperate with the selling holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities, which certificates shall not bear any restrictive
legends; and enable such Registrable Securities to be in such denominations
and registered in such names, in all cases consistent with the requirements
set forth in the Indenture, as the holders may request;
(j) subject to the exceptions contained in (A), (B) and (C) of
subsection (h) hereof, use its best efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be
registered with or approved by such other Federal, state and local
governmental regulatory agencies or authorities in the United States as may
be necessary, by virtue of the business and operations of the Company, to
enable the seller or sellers thereof to consummate the disposition of such
Registrable Securities and cooperate with each seller of Registrable
Securities in connection with any filings required to be made with the
National Association of Securities Dealers; Inc.;
(k) upon the occurrence of any event contemplated by paragraph
4(c)(vii) or 4(c)(viii) above, as promptly as practicable thereafter,
prepare and file with the SEC a supplement or post-effective amendment to
the applicable Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities being sold thereunder, such Prospectus will
not contain an untrue
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statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
(l) enter into such customary agreements and take all such other
reasonable actions in connection therewith (including those reasonably
requested by the holders of a majority in aggregate principal amount at
maturity of the Registrable Securities being sold (provided that holders of
Common Stock issued upon the conversion of the Debentures shall be deemed
for this purpose to be holders of the aggregate principal amount at
maturity of Debentures from which such Common Stock was converted) in order
to expedite or facilitate the disposition of such Registrable Securities;
provided, however, that the Company shall not be required to enter into an
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underwriting agreement in connection with any such disposition;
(m) cause the Indenture to be qualified under the TIA not later than
the effective date of any registration; 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 their reasonable efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
SEC to enable the Indenture to be so qualified in a timely manner; and
(n) comply with all applicable rules and regulations of the SEC and
make generally available to the Company's securityholders an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder no later than the date required for the filing of
the applicable forms referred to in Rule 158 under the Securities Act,
commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statement shall cover said 12-month period.
The Company may require each seller of Registrable Securities under a
Shelf Registration to furnish to the Company such information regarding the
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing and each holder in acquiring
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such Registrable Securities agrees to supply such information to the Company
promptly upon such request.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 4(c)(iii), 4(c)(iv),
4(c)(vi), 4(c)(vii) or 4(c)(viii) hereof, such holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus and will not resume disposition of such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 4(k) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of the Registration Statement and Prospectus
and any additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. Notwithstanding the foregoing, the
Company shall not allow such Registration Statement or Prospectus to fail to be
effective for more than 30 days during any 360 day period.
5. Registration Expenses. The Company shall pay all fees and
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expenses incident to the performance of or compliance with this Agreement by the
Company including, without limitation, (i) all SEC, stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses incurred in connection with compliance with state securities
or Blue Sky laws (including reasonable fees and disbursements of counsel for any
underwriters or holders in connection with Blue Sky qualification of any of the
Registrable Securities), (iii) all expenses of any persons in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or supplements thereto,
other documents relating to the Company's performance of and compliance with
this Agreement, and (iv) all rating agency fees but excluding fees of any
special accountants retained by the selling holders, counsel to the underwriters
and underwriting discounts and commissions and transfer taxes, if any, relating
to the sale or disposition of Registrable Securities by a holder of Registrable
Securities.
6. Indemnification. The Company agrees to indemnify and hold
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harmless each Initial Purchaser and each holder of Registrable Securities and
each person, if any, who controls any Initial Purchaser or any holder of
Registrable Securities within the meaning of either Section 15 of the Securities
Act or Section 20 of the
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Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment thereof,
any preliminary prospectus or the Prospectus (as amended and supplemented if the
Company shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to the Initial Purchasers or any holder of Registrable
Securities furnished to the Company in writing by any Initial Purchaser or such
holder of Registrable Securities (which also expressly acknowledges the
indemnity provisions herein) expressly for use therein.
In connection with any Shelf Registration in which a holder 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 any Initial Purchaser
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and the Company, its directors and officers who sign a
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section, from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating any
such action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to such information relating to
such holder of Registrable Securities furnished in writing by or on behalf of
such holder of Registrable Securities expressly for use
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in the Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to any of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, 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. The indemnifying
party, upon request of the indemnified party, shall retain counsel satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. The indemnifying party
will be entitled to participate in any such proceeding, and to the extent that
it may elect by written notice delivered to the indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; provided,
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however, that if the defendants in any such action include both the indemnified
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party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence, (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability
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shall be only in respect of the counsel referred to in such clause (i) or (iii).
It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for an Initial
Purchaser and all persons, if any, who control such Initial Purchaser within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (b) the fees and expenses of more than one separate firm (in addition to
any local counsel) for the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the Company within
the meaning of either such Section and (c) the fees and expenses of more than
one separate firm (in addition to any local counsel) for all holders of
Registrable Securities and all persons, if any, who control any holders of
Registrable Securities within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In such case
involving any Initial Purchaser and control persons of such Initial Purchaser,
such firm shall be designated in writing the Initial Purchaser. In such case
involving the holders of Registrable Securities and such controlling persons of
holders of Registrable Securities, such firm shall be designated in writing by
holders of a majority in aggregate principal amount at maturity of Registrable
Securities (provided that holders of Common Stock issued upon the conversion of
the Debentures shall be deemed for this purpose to be holders of the aggregate
principal amount at maturity of Debentures from which such Common Stock was
converted). In all other cases, such firm shall be designated by the Company.
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 investiga tion 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 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (x)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (y) 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.
If the indemnification provided for in the first or second paragraph
of this Section 6 is unavailable to an indemnified party or insufficient in
respect of any losses,
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claims, damages or liabilities referred to therein, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities 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 or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations.
The parties hereto agree that it would not be just or equitable if
contribution pursuant to this Section 6 were determined by pro rata allocation
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or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no holder of Registrable Securities 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 and distributed to the public exceeds the amount of any
damages that such holder of Registrable Securities 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 remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any indemnified party at law or in equity.
The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Initial Purchaser or any person
controlling any Initial Purchaser, any holder of Registrable Securities or any
person controlling the holder of Registrable Securities, or the Company, its
officers or directors or any person controlling the Company.
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7. Miscellaneous. (a) Remedies. In the event of a breach by the
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Company of any of its obligations under this Agreement, each holder of
Registrable Securities, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Company agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, it shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company shall 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 of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
-----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented (other than to cure any ambiguity or correct or supplement any
provision herein), 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 aggregate principal amount at
maturity of Registrable Securities (provided that holders of Common Stock issued
upon the conversion of the Debentures shall be deemed for this purpose to be
holders of the aggregate principal amount at maturity of Debentures from which
such Common Stock was converted), except in the case of the Initial Purchasers
prior to distribution of the Debentures, then the consent of the Initial
Purchasers. 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 in aggregate principal amount at maturity of the
Registrable Securities being sold by such holders (provided that holders of
Common Stock issued upon the conversion of the Debentures shall be deemed for
this purpose to be holders of the aggregate principal amount at maturity of
Debentures from which such Common Stock was converted).
(d) Notices. All notices and other communications provided for or
--------
permitted hereunder shall be
16
made in writing by hand-delivery, registered first-class mail, telex, or
telecopier:
(i) if to a holder of Registrable Securities, at the most current
address given by such holder to the Company in accordance with the
provisions of this Section 7(d);
(ii) if to the Company, at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of E.M. Filter, Vice President, Treasurer and Secretary,
and thereafter by such other address, notice of which is given in
accordance with the provision of this Section 8(d); and
(iii) if to the Initial Purchasers, at ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of Vice President, Treasurer
and Secretary.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being sent by next-day solvent air courier; when answered back, if
telexed; and when receipt acknowledged, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the person giving the same to the Trustee under the
Indenture at the address specified in such 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 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 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
principles of conflicts of laws.
17
(i) Severability. If any term, provision, covenant or restriction of
-------------
this Agreement is held by a court of competent jurisdiction to be invalid, 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, 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 is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such which may
be hereafter declared invalid, void or unenforceable.
(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. 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 securities sold pursuant to the Purchase Agreement. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(k) Securities Held by the Company or its Affiliates. Whenever the
-------------------------------------------------
consent or approval of holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any of its affiliates shall not be counted in determining whether such consent
or approval was given by the holders of
18
such required percentage or amount.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XEROX CORPORATION,
by
__________________________
Name:
Title:
Confirmed and accepted
as of the date first
above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
by ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ &
▇▇▇▇▇ INCORPORATED,
by
____________________________
Name:
Title:
EXHIBIT A
---------
Xerox Corporation
Notice of Registration Statement
--------------------------------
and
---
Selling Securityholder Questionnaire
------------------------------------
(Date)
Reference is hereby made to the Registration Rights Agreement (the
"Registration Rights Agreement") between Xerox Corporation (the "Company") and
the Initial Purchasers named therein. Pursuant to the Registration Rights
Agreement, the Company has filed with the United States Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (the "Shelf
Registration Statement") for the registration and resale under Rule 415 of the
Securities Act of 1933, as amended (the "Securities Act"), of the Company's
Convertible Subordinated Debentures due April 21, 2018 (the "Securities"), and
the shares of Common Stock, par value $1.00 per share (the "Common Stock"),
issuable upon conversion thereof. A copy of the Registration Rights Agreement
is attached hereto. All capitalized terms not otherwise defined herein shall
have the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities is entitled to have the
Registrable Securities beneficially owned by it included in the Shelf
Registration Statement. In order to have Registrable Securities included in the
Shelf Registration Statement, this Notice of Registration Statement and Selling
Securityholder Questionnaire ("Notice and Questionnaire") must be completed,
executed and delivered to the Company's counsel at the address set forth herein
for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners of
---------------------
Registrable Securities who do not complete, execute and return this Notice and
Questionnaire by such date (i) will not be named as selling securityholders in
the Shelf Registration Statement and (ii) may not use the Prospectus forming a
part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable
Securities hereby elects to include in the Shelf Registration Statement the
Registrable Securities beneficially owned by it and listed below in Item (3).
The undersigned, by signing and returning this Notice and Questionnaire, agrees
to be bound with respect to such Registrable Securities by the terms and
conditions of this Notice and Questionnaire and the Registration Rights
Agreement, including, without limitation, the indemnification set forth in
Section 6 of the Registration Rights Agreement, as if the undersigned Selling
Securityholder were an original party thereto.
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in (3) below
are Held:
(2) Address for Notices to Selling Securityholder:
Telephone:
Fax:
Contact Person:
(3) Beneficial Ownership of Securities and shares of Common Stock issued upon
conversion of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock issued upon conversion
of any Securities.
(a) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:
CUSIP No(s). of such Registrable Securities:
Number of shares of Common Stock (if any) issued upon conversion of
such Registrable Securities:
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
CUSIP No(s). of such other Securities:
Number of shares of Common Stock (if any) issued upon conversion of
such other Securities:
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement:
Number of shares of Common Stock (if any) issued upon conversion of
Registrable Securities which are to be included in the Shelf
Registration Statement:
(4) Beneficial ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or more) has
held any position or office or has had any other material relationship with the
Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder intends
to distribute the Registrable Securities listed above in Item (3) only as
follows (if at all): Such Registrable Securities may be sold from time to time
directly by the undersigned Selling Securityholder or, alternatively, through
underwriters, broker-dealers or agents. Such Registrable Securities may be sold
in one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve crosses
or block transactions) (i) on any national securities exchange or quotation
service on which the Registered Securities may be listed or quoted at the time
of sale, (ii) in the over-the-counter market, (iii) in transactions otherwise
than on such exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the Registrable
Securities or otherwise, the Selling Securityholder may enter into hedging
transactions with broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they assume. The
Selling Securityholder may also sell Registrable Securities short and deliver
Registrable Securities to close out such short positions, or loan or pledge
Registrable Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of an
underwritten offering of the Registrable Securities without the prior agreement
of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Regulation M.
In the event that the Selling Securityholder transfers all or any portion
of the Registrable Securities listed in Item (3) above after the date on which
such information is provided to the Company, the Selling Securityholder agrees
to notify the transferees at the time of the transfer of its
rights and obligations under this Notice and Questionnaire and the Registration
Rights Agreement.
By signing below, the Selling Securityholder consents to the disclosure of
the information contained herein in its answers to Items (1) through (6) above
and the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
The Selling Securityholder agrees to promptly notify the Company of any
inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement
remains in effect. All notices hereunder and pursuant to the Registration
Rights Agreement shall be made in writing, by hand-delivery, first-class mail,
or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Xerox Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: E.M. Filter, Vice President,
Treasurer and Secretary
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company, the terms of this Notice and
Questionnaire, and the representations and warranties contained herein, shall be
binding on, shall inure to the benefit of and shall be enforceable by the
respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused
this Notice and Questionnaire to be executed and delivered either in person or
by its duly authorized agent.
Dated:
Selling Securityholder
(Print/type full legal name of
beneficial owner of
Registrable Securities)
By:
Name:
Title: