Exhibit 4.2
$150,000,000
GTECH HOLDINGS CORPORATION
1-3/4% CONVERTIBLE DEBENTURES DUE DECEMBER 15, 2021
REGISTRATION RIGHTS AGREEMENT
December 18, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
As Representatives of the Initial Purchasers
c/o Credit Suisse First Boston Corporation
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
GTECH Holdings Corporation, a Delaware corporation (the "COMPANY"),
proposes to issue and sell to Credit Suisse First Boston Corporation, Banc of
America Securities LLC and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated,
as representatives of several purchasers (collectively, the "INITIAL
PURCHASERS"), upon the terms set forth in a purchase agreement dated December
12, 2001 (the "PURCHASE AGREEMENT"), $150,000,000 aggregate principal amount
(plus up to an additional $25,000,000 principal amount) of its 1-3/4%
Convertible Debentures due December 15, 2021 (the "DEBENTURES"). The Debentures
will be issued pursuant to an Indenture, dated as of December 18, 2001 (the
"INDENTURE"), among (i) the Company, (ii) GTECH Corporation, a Delaware
corporation, GTECH Rhode Island Corporation, a Rhode Island corporation, and
GTECH Latin America Corporation, a Delaware corporation, as guarantors (each, a
"GUARANTOR" and collectively, the "GUARANTORS" and, together with the Company,
the "COMPANIES"), and (iii) The Bank of New York, as trustee (the "TRUSTEE").
The obligations of the Company under the Debentures and the Indenture will be
fully and unconditionally guaranteed (the "GUARANTEES" and, together with the
Debentures, the "SECURITIES") on an unsecured, unsubordinated basis by the
Guarantors pursuant to the terms of the Indenture. As an inducement to the
Initial Purchasers to enter into the Purchase Agreement, the Companies agree
with the Initial Purchasers, for the benefit of (i) the Initial Purchasers as
Initial Purchasers and (ii) the beneficial owners (including the Initial
Purchasers) from time to time of the Securities and of the Underlying Common
Stock (as defined below) issued upon conversion of the Securities (each of the
foregoing, a "HOLDER" and, collectively, the "HOLDERS"), as follows:
1. Shelf Registration.
(a) The Companies shall prepare and file with the Securities and
Exchange Commission (the "COMMISSION") as soon as practicable but in no event
later than 90 days (such 90th day being a "FILING DEADLINE") after the latest
date on which the Initial Purchasers purchase the Securities pursuant to the
Purchase Agreement (the "CLOSING DATE"), a registration statement (the "INITIAL
SHELF REGISTRATION STATEMENT," and together with any Subsequent Shelf
Registration Statement (as defined below), including, in each case, the
prospectus, amendments and supplements to such registration statements,
including post-effective amendments, all exhibits, and all materials
incorporated by reference or deemed to be incorporated by reference in such
registration statements, are herein collectively referred to as the "SHELF
REGISTRATION STATEMENT") for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act of 1933, as amended (the
"SECURITIES ACT") (the "SHELF REGISTRATION"), registering the resale from time
to time by Holders thereof of all of the Registrable Securities (as
defined below). The Initial Shelf Registration Statement shall be on an
appropriate form under the Securities Act permitting registration of such
Registrable Securities for resale by such Holders from time to time in
accordance with the methods of distribution elected by the Holders and set forth
in the Initial Shelf Registration Statement. The Companies shall use their best
efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act as promptly as is practicable but in any
event within one hundred and eighty (180) days after the Closing Date (the
"EFFECTIVENESS DEADLINE DATE"), and to keep the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act to permit the prospectus included therein to
be lawfully delivered by the Holders of the Registrable Securities, for a period
of two years (or for such longer period if extended pursuant to Section 2(h)
below) from the Closing Date or such shorter period that will terminate when (i)
all the Registrable Securities covered by the Shelf Registration Statement have
been sold pursuant thereto or (ii) the expiration of the holding period that
would be applicable to the Registrable Securities pursuant to Rule 144(k) under
the Securities Act were it not held by an "affiliate" (as defined in Rule 144
under the Securities Act, or any successor rule thereof) of any of the Companies
(such period, the "EFFECTIVENESS PERIOD"). The Companies shall be deemed not to
have used their best efforts to keep the Shelf Registration Statement effective
during the requisite period if any of them voluntarily takes any action that
would result in Holders of Registrable Securities covered thereby not being able
to offer and sell such Registrable Securities during that period, unless such
action is required by applicable law. None of the Company's securityholders
(other than the Holders of Registrable Securities) shall have the right to
include any of the Company's securities in the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all Registrable Securities
registered thereunder have been resold pursuant thereto or have otherwise ceased
to be Registrable Securities), the Companies shall use their best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within thirty (30) days of such cessation of
effectiveness amend such Shelf Registration Statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement covering all of the
securities that as of the date of such filing are Registrable Securities (a
"SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a Subsequent Shelf Registration
Statement is filed, the Companies shall use their best efforts to cause the
Subsequent Shelf Registration Statement to become effective as promptly as is
practicable after such filing and to keep such Subsequent Shelf Registration
Statement continuously effective until the end of the Effectiveness Period.
(c) The Companies shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Companies for such Shelf Registration
Statement, if required by the Securities Act or, to the extent to which the
Companies do not reasonably object, as reasonably requested by (i) the Initial
Purchasers in the event that they are participating in the Shelf Registration
Statement or (ii) the Trustee on behalf of a majority in interest of the
registered Holders.
(d) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to a Shelf Registration Statement
and related prospectus, it will do so only in accordance with this Section 1(d)
and Section 2(h). Each Holder of Registrable Securities wishing to sell
Registrable Securities pursuant to a Shelf Registration Statement and related
prospectus agrees to deliver a Notice and Questionnaire to the Companies. At the
time the Initial Shelf Registration Statement is declared effective, each Holder
who has provided the Companies with an appropriately completed Notice and
Questionnaire (as defined below), on or prior to the date five (5) Business Days
prior to such time of effectiveness, and who holds Registrable Securities shall
be named as a selling securityholder in the Initial Shelf Registration Statement
and the related prospectus in such a manner as to permit such Holder to deliver
such prospectus to purchasers of Registrable Securities in accordance with
applicable law. From and after the date the Initial Shelf Registration Statement
is declared effective, the Companies shall, as promptly as practicable, but in
any event no later than five (5) Business Days, after the date a Notice and
Questionnaire is delivered (i) if required by applicable law, file with the
Commission a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the related
prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required under the Securities Act so that
the Holder delivering such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the related prospectus in
such a manner as to permit
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such Holder to deliver such prospectus to purchasers of the Registrable
Securities in accordance with applicable law and, if the Companies shall file a
post-effective amendment to the Shelf Registration Statement, use their best
efforts to cause such post-effective amendment to be declared effective under
the Securities Act as promptly as is practicable, but in any event by the date
(the "AMENDMENT EFFECTIVENESS DEADLINE DATE") that is forty-five (45) days after
the date such post-effective amendment is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed pursuant to clause (i) of
this Section 1(d); and (iii) notify such Holder as promptly as practicable after
the effectiveness under the Securities Act of any post-effective amendment filed
pursuant to clause (i) of this Section 1(d); provided that if such Notice and
Questionnaire is delivered during a Deferral Period (as defined in Section
2(h)), the Companies shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
2(h). Notwithstanding anything contained herein to the contrary, (i) the
Companies shall be under no obligation to name any Holder that has not submitted
a Notice and Questionnaire to the Companies as a selling securityholder in any
Shelf Registration Statement or related prospectus and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten (10) days from the
expiration of a Deferral Period (and the Companies shall incur no obligation to
pay Additional Interest (as defined below) during such extension) if such
Deferral Period is in effect on the Amendment Effectiveness Deadline Date.
(e) Notwithstanding any other provisions of this Agreement to the
contrary, the Companies shall cause the Shelf Registration Statement and the
related prospectus and any amendment or supplement thereto, as of the effective
date of the Shelf Registration Statement, amendment or supplement, (i) to comply
in all material respects with the applicable requirements of the Securities Act
and the rules and regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading.
(f) As used in this Agreement, the following terms shall have the
following meanings:
"APPLICABLE CONVERSION PRICE" as of any date of determination
means the Conversion Price (as defined in the Indenture) in effect as
of such date of determination or, if no Securities are then
outstanding, the Conversion Price that would be in effect were
Securities then outstanding.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City
of New York are authorized or obligated by law or executive order to
close.
"COMMON STOCK" means the shares of common stock, $0.01 par
value per share, of the Company and any other shares of common stock as
may constitute "Common Stock" for purposes of the Indenture, including
the Underlying Common Stock.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"NOTICE AND QUESTIONNAIRE" means a written notice delivered to
the Companies by a Holder containing any information with respect to
the Holder necessary to include such Holder's Registrable Securities in
the Registration Statement or to amend the Registration Statement or
supplement the related prospectus with respect to the intended
distribution of Registrable Securities by such Holder.
"NOTICE HOLDER" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Companies on or prior to
such date and holds Registrable Securities as of such date.
"REGISTRABLE SECURITIES" means the Securities, until such
Securities have been converted into or exchanged for the Underlying
Common Stock and, at all times subsequent to any such conversion or
exchange, the Underlying Common Stock and any securities into or for
which such Underlying Common Stock have been converted or exchanged,
and any security issued with respect thereto upon any stock
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dividend, split or similar event until, in the case of any such
security, (A) the earliest of (i) its effective registration under the
Securities Act and resale in accordance with the Shelf Registration
Statement covering it, (ii) expiration of the holding period that would
be applicable thereto under Rule 144(k) under the Securities Act were
it not held by an "affiliate" (as defined in Rule 144 under the
Securities Act, or any successor rule thereof) of any of the Companies
and (iii) its sale to the public pursuant to Rule 144, and (B) as a
result of the event or circumstance described in any of the foregoing
clauses (i) through (iii), the legends with respect to transfer
restrictions required under the Indenture are removed or removable in
accordance with the terms of the Indenture or such legend, as the case
may be.
"UNDERLYING COMMON STOCK" means the Common Stock into which
the Securities are convertible or issued upon any such conversion.
2. Registration Procedures. In connection with the Shelf Registration
contemplated by Section 1 hereof, the following provisions shall apply:
(a) The Companies shall (i) furnish to each Initial Purchaser, prior to
the filing thereof with the Commission, a copy of any Shelf Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and the Companies shall use their best efforts to
reflect in the Shelf Registration Statement, when so filed with the Commission,
such comments as the Initial Purchasers reasonably may propose; and (ii) include
the names of the Notice Holders who propose to sell Registrable Securities
pursuant to the Shelf Registration Statement as selling securityholders.
(b) The Companies shall give written notice to the Initial Purchasers
and the Holders (which notice pursuant to clauses (ii) through (v) hereof shall
be accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Companies or their legal counsel of
any notification with respect to the suspension of the qualification of
the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(v) of the happening of any event that requires the Companies
to make changes in the Shelf Registration Statement or the prospectus
in order that the Shelf Registration Statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading.
(c) The Companies shall make every reasonable effort to obtain the
withdrawal at the earliest possible time, of any order suspending the
effectiveness of the Shelf Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale.
(d) The Companies shall furnish to each Holder of Registrable
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective
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amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits thereto (including those, if any,
incorporated by reference).
(e) The Companies shall, during the Effectiveness Period, deliver to
each Holder of Registrable Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including each
preliminary prospectus, if any) included in the Shelf Registration Statement and
any amendment or supplement thereto as such person may reasonably request. The
Companies consent, subject to the provisions of this Agreement, to the use of
the prospectus or any amendment or supplement thereto by each of the selling
Holders of the Registrable Securities in connection with the offering and sale
of the Registrable Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(f) Prior to any public offering of the Registrable Securities pursuant
to any Shelf Registration Statement the Companies shall register or qualify or
cooperate with the Holders of the Registrable Securities included therein and
their respective counsel in connection with the registration or qualification of
the Registrable Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of Registrable Securities
reasonably requests in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the
Registrable Securities covered by such Shelf Registration Statement; provided,
however, that none of the Companies shall be required to (i) qualify generally
to do business in any jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service of process or to
taxation in any jurisdiction where it is not then so subject.
(g) The Companies shall cooperate with the Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing the Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as the Holders may request a reasonable period of
time prior to sales of the Registrable Securities pursuant to such Shelf
Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs (ii)
through (v) of Section 2(b) above during the period for which the Companies are
required to maintain an effective Shelf Registration Statement, the Companies
shall promptly prepare and file a post-effective amendment to the Shelf
Registration Statement or a supplement to the related prospectus and any other
required document so that, as thereafter delivered to Holders or purchasers of
Registrable Securities, the prospectus will not contain an 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. If the Companies notify the Initial
Purchasers and the Holders of Registrable Securities in accordance with
paragraphs (ii) through (v) of Section 2(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchasers and the Holders of Registrable Securities shall suspend
use of such prospectus (such period during which the availability of the Shelf
Registration Statement and any related prospectus is suspended being a "DEFERRAL
PERIOD"), and the period of effectiveness of the Shelf Registration Statement
provided for in Section 1(a) above shall each be extended by the number of days
from and including the date of the giving of such notice to and including the
date when the Initial Purchasers and the Holders of Registrable Securities shall
have received such amended or supplemented prospectus pursuant to this Section
2(h). The Companies will use their best efforts to ensure that the use of the
prospectus may be resumed as promptly as is practicable. The Companies shall be
entitled to exercise their right under this Section 2(h) to suspend the
availability of the Shelf Registration Statement or any prospectus, without
incurring or accruing any obligation to pay Additional Interest pursuant to
Section 5(a), for one or more periods not to exceed 45 days in any 3 month
period and not to exceed, in the aggregate, 90 days in any 12-month period.
(i) Not later than the effective date of the Initial Shelf Registration
Statement, the Companies will provide a CUSIP number for the Registrable
Securities and provide the applicable trustee with printed certificates for the
Securities in a form eligible for deposit with The Depository Trust Company.
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(j) The Companies shall prepare and file with the Commission such
amendments and post-effective amendments to each Shelf Registration Statement as
may be necessary to keep such Shelf Registration Statement continuously
effective for the applicable period specified in Section 1(a) and shall cause
the related prospectus to be supplemented by any required prospectus supplement
to be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act. The Companies will comply with all rules and regulations of
the Commission to the extent and so long as they are applicable to the Shelf
Registration and the Company will make generally available to its
securityholders (or otherwise provide in accordance with Section 11(a) of the
Securities Act) an earnings statement satisfying the provisions of Section 11(a)
of the Securities Act, no later than 45 days after the end of a 12-month period
(or 90 days, if such period is a fiscal year) beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of the
Shelf Registration Statement, which statement shall cover such 12-month period.
(k) The Companies shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing such
changes, if any, as shall be necessary for such qualification. In the event that
such qualification would require the appointment of a new trustee under the
Indenture, the Companies shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
(l) The Companies may require each Holder of Registrable Securities to
be sold pursuant to the Shelf Registration Statement to furnish to the Companies
such information regarding the Holder and the distribution of the Registrable
Securities as the Companies may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Companies may exclude
from such registration the Registrable Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(m) The Companies shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as any Holder shall reasonably request in order
to facilitate the disposition of the Registrable Securities pursuant to any
Shelf Registration Statement.
(n) The Company shall (i) make reasonably available for inspection by
the Notice Holders, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement and any attorney, accountant or other agent
retained by the Notice Holders or any such underwriter, all relevant financial
and other records, pertinent corporate documents and properties of the Company
and (ii) cause the Company's officers, directors, employees, accountants and
auditors to supply all relevant information reasonably requested by the Notice
Holders or any such underwriter, attorney, accountant or agent in connection
with the Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering shall be coordinated on behalf of
the Initial Purchasers by you and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 3
hereof.
(o) The Companies, if requested by any Notice Holder, shall cause (i)
their counsel (which can either be in-house or outside counsel) to deliver an
opinion and updates thereof relating to the Registrable Securities in customary
form addressed to such Notice Holders and the Managing Underwriters (as defined
below), if any, thereof (it being agreed that the matters to be covered by such
opinion shall include, without limitation, and subject to customary
qualifications and assumptions, the due incorporation and good standing of the
Company and its subsidiaries; the qualification of the Company and its
subsidiaries to transact business as foreign corporations; the due
authorization, execution and delivery of the relevant agreement of the type
referred to in Section 2(m) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
applicable Registrable Securities; the absence of known material legal or
governmental proceedings involving the Company or its subsidiaries; the absence
of governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable Registrable
Securities, or any agreement of the type referred to in Section 2(m) hereof; the
compliance as to form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with the requirements of
the Securities Act and the Trust Indenture Act, respectively; and, as of the
date of the opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may be,
the absence from such
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Shelf Registration Statement and the prospectus included therein, as then
amended or supplemented, and from any documents incorporated by reference
therein of an untrue statement of a material fact or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any such documents, in the
light of the circumstances existing at the time that such documents were filed
with the Commission under the Exchange Act)); (ii) their respective officers to
execute and deliver all customary documents and certificates reasonably
requested by any underwriters of the applicable Registrable Securities and (iii)
their independent public accountants to provide to such Notice Holders and any
underwriter therefor a comfort letter in customary form and covering matters of
the type customarily covered in comfort letters in connection with primary
underwritten offerings, subject to receipt of appropriate documentation as
contemplated, and only if permitted, by Statement of Auditing Standards No. 72,
in each case, dated the effective date of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case may be.
(p) The Companies will use their best efforts to confirm that the
respective credit ratings of the Securities provided by Standard & Poor's Rating
Services, a division of McGraw Hill, Inc., and ▇▇▇▇▇'▇ Investors Service, Inc.
prior to the initial sale of such Securities will apply to any such Securities
which are Registrable Securities and are covered by a Shelf Registration
Statement.
(q) In the event that any broker-dealer registered under the Exchange
Act shall underwrite any Registrable Securities or participate as a member of an
underwriting syndicate or selling group or "assist in the distribution" (within
the meaning of the Conduct Rules (the "RULES") of the National Association of
Securities Dealers, Inc. ("NASD")) thereof, whether as a Holder of such
Registrable Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Companies will assist
such broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Shelf Registration Statement relating to
such Registrable Securities, to exercise usual standards of due diligence in
respect thereto and, if any portion of the offering contemplated by such Shelf
Registration Statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable Securities,
(ii) indemnifying any such qualified independent underwriter to the extent of
the indemnification of underwriters provided in Section 4 hereof and (iii)
providing such information to such broker-dealer as may be required in order for
such broker-dealer to comply with the requirements of the Rules.
(r) The Companies shall use their best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Shelf Registration Statement contemplated hereby.
(s) The Companies shall as promptly as practicable (if reasonably
requested by any Notice Holder or by any Initial Purchaser participating in the
Shelf Registration Statement), incorporate in a prospectus supplement or
post-effective amendment to the Shelf Registration Statement such information as
such Notice Holder or Initial Purchaser shall, on the basis of an opinion of
nationally recognized counsel experienced in such matters, determine to be
required to be included therein and make any required filings of such prospectus
supplement or such post-effective amendment; provided that the Companies shall
not be required to take any actions under this Section 2(s) that are not, in the
reasonable opinion of counsel for the Companies, in compliance with applicable
law.
(t) The Companies shall use their best efforts to cause the Underlying
Common Stock issued upon conversion of the Securities to be listed on the New
York Stock Exchange.
3. Registration Expenses.
(a) All expenses incident to the Companies' performance of and
compliance with this Agreement will be borne by the Companies, regardless of
whether a Shelf Registration Statement is ever filed or becomes effective,
including without limitation:
(i) all registration and filing fees and expenses;
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(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing, messenger and delivery
services and telephone;
(iv) all fees and disbursements of counsel for the Companies;
(v) all application and filing fees in connection with listing
the Underlying Common Stock on the New York Stock Exchange pursuant to
the requirements hereof; and
(vi) all fees and disbursements of independent certified
public accountants of the Companies (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Companies will bear their internal expenses (including, without limitation,
all salaries and expenses of their respective 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 Companies.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Companies will bear or reimburse the Notice Holders for the
reasonable fees and disbursements of one firm of legal counsel, which shall
initially be Shearman & Sterling, but which may, with the written consent of the
Initial Purchasers (which consent shall not be unreasonably withheld), be
another nationally recognized law firm experienced in securities law matters
designated by the Companies.
4. Indemnification.
(a) The Companies, jointly and severally, agree to indemnify and hold
harmless each Holder of Registrable Securities and each person, if any, who
controls such Holder within the meaning of the Securities Act or the Exchange
Act (each Holder and such controlling persons are referred to collectively as
the "INDEMNIFIED PARTIES") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof (including, but
not limited to, any losses, claims, damages, liabilities or actions relating to
purchases and sales of the Registrable Securities) to which each Indemnified
Party may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in a Shelf Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating to
the Shelf Registration, or arise out of, or are based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse,
as incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Companies shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission made in a
Shelf Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to the Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Companies by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus relating to a Shelf Registration, the indemnity agreement contained
in this subsection (a) shall not inure to the benefit of any Holder from whom
the person asserting any such losses, claims, damages or liabilities purchased
the Registrable Securities concerned, to the extent that a prospectus relating
to such Registrable Securities was required to be delivered by such Holder under
the Securities Act in connection with such purchase and any such loss, claim,
damage or liability of such Holder results from the fact that there was not sent
or given to such person, at or prior to the written confirmation of the sale of
such Registrable Securities to such person, a copy of the final prospectus if
the Companies had previously furnished copies thereof to such Holder; provided
further, however, that this indemnity agreement will be in addition to any
liability which the Companies
8
may otherwise have to such Indemnified Party. The Companies shall, jointly and
severally, also indemnify underwriters, their officers and directors and each
person who controls such underwriters within the meaning of the Securities Act
or the Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders if requested by such Holders.
(b) Each Holder of Registrable Securities, severally and not jointly,
will indemnify and hold harmless the Companies and each person, if any, who
controls the Company or any Guarantor within the meaning of the Securities Act
or the Exchange Act from and against any losses, claims, damages or liabilities
or any actions in respect thereof, to which the Company, any Guarantor or any
such controlling person may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Shelf Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to the Shelf Registration, or arise out of or are based upon
the omission or alleged omission to state therein a material fact necessary to
make the statements therein not misleading, but in each case only to the extent
that the untrue statement or omission or alleged untrue statement or omission
was made in reliance upon and in conformity with written information pertaining
to such Holder and furnished to the Companies by or on behalf of such Holder
specifically for inclusion therein; and, subject to the limitation set forth
immediately preceding this clause, shall reimburse, as incurred, the Company or
any Guarantor for any legal or other expenses reasonably incurred by the
Company, any Guarantor or any such controlling person in connection with
investigating or defending any loss, claim, damage, liability or action in
respect thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company, any Guarantor or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under this Section 4
of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 4,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof the
indemnifying party will not be liable to such indemnified party under this
Section 4 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action, and does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 4 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to in
subsection (a) or (b) above: (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties, or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or
9
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Companies on the
one hand or such Holder or such other indemnified party, as the case may be, on
the other, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding any other
provision of this Section 4(d), the Holders of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holders from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages which
such Holders have otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this subsection
(d), each person, if any, who controls such indemnified party within the meaning
of the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls the
Company or any Guarantor within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company or any
Guarantor.
(e) The agreements contained in this Section 4 shall survive the sale
of the Registrable Securities pursuant to a Shelf Registration Statement and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
5. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect to the
Registrable Securities shall be assessed as follows if any of the following
events occur (each such event in clauses (i) through (iv) below being herein
called a "REGISTRATION DEFAULT"):
(i) the Initial Shelf Registration Statement required by this
Agreement is not filed with the Commission on or prior to the Filing
Deadline;
(ii) the Initial Shelf Registration Statement required by this
Agreement is not declared effective by the Commission on or prior to
the Effectiveness Deadline Date;
(iii) the Companies have failed to perform their obligations
set forth in Section 1(d) within the time period required therein; or
(iv) any Shelf Registration Statement required by this
Agreement has been declared effective by the Commission but (A) such
Shelf Registration Statement thereafter ceases to be effective or (B)
such Shelf Registration Statement or the related prospectus ceases to
be usable in connection with resales of Registrable Securities during
the periods specified herein (other than during a Deferral Period) and
the Companies do not cure the Shelf Registration Statement within five
(5) Business Days by a post-effective amendment or a report filed
pursuant to the Exchange Act or, if applicable, the Companies do not
terminate any Deferral Period within the time required by Section 2(h).
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Companies or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Registrable Securities over and
above the interest set forth in the title of the Debentures from and including
the date on which any such Registration Default shall occur to but excluding
10
the date on which all such Registration Defaults have been cured, at a rate of
0.50% per annum (the "ADDITIONAL INTEREST RATE") of the aggregate principal
amount of the Securities that are Registrable Securities. In the case of
Securities that have been converted into or exchanged for Underlying Common
Stock, Additional Interest shall accrue at a per annum rate equal to 0.50% of
the Applicable Conversion Price of such shares of Underlying Common Stock that
are Registrable Securities. In the case of Additional Interest accruing solely
as a result of a Registration Default of the type described in Section
5(a)(iii), such Additional Interest shall be paid only to the Notice Holders
that caused the Companies to incur the obligations set forth in Section 1(d) the
non-performance of which is the basis of such Registration Default. Any
Additional Interest accrued with respect to any principal amount of Securities
called for redemption on a redemption date or converted into Underlying Common
Stock on a conversion date prior to the interest payment date with respect to
such Securities under the Indenture, shall, in any such event, be paid instead
to the Holder who submitted such Securities for redemption or conversion on the
applicable redemption date or conversion date, as the case may be, on such date
(or promptly following the conversion date, in the case of conversion).
Notwithstanding the foregoing, no Additional Interest shall accrue as to any
Registrable Security from and after the earlier of (x) the date such security is
no longer a Registrable Security and (y) the expiration of the Effectiveness
Period. The rate of accrual of the Additional Interest with respect to any
period shall not exceed the rate provided for in this paragraph notwithstanding
the occurrence of multiple concurrent Registration Defaults. Following the cure
of all Registration Defaults requiring the payment by the Companies of
Additional Interest to the Holders of Registrable Securities pursuant to this
Section 5, the accrual of Additional Interest will cease (without in any way
limiting the effect of any subsequent Registration Default requiring the payment
of Additional Interest by the Companies).
The Trustee shall be entitled, on behalf of Holders of Registrable
Securities, to seek any available remedy for the enforcement of this Agreement,
including the payment of any Additional Interest.
All of the Companies' obligations set forth in this Section 5 that are
outstanding with respect to any Registrable Security at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full.
The parties hereto agree that the Additional Interest provided for in
this Section 5 constitutes a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities by reason of the failure of the
Shelf Registration Statement to be filed or declared effective or available for
effecting resales of Registrable Securities in accordance with the provisions
hereof.
(b) Any amounts of Additional Interest due pursuant to Section 5(a)
will be payable in cash on the regular interest payment dates with respect to
the Registrable Securities. The amount of Additional Interest will be determined
by multiplying the applicable Additional Interest Rate by the principal amount
of the Registrable Securities or the Applicable Conversion Price of the
Registrable Securities, as applicable, and further multiplied by a fraction, the
numerator of which is the number of days such Additional Interest Rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360. The
Registrable Securities entitled to payment of Additional Interest shall be
determined as of the Business Day immediately preceding the next regular
interest payment date with respect to the Registrable Securities.
6. Rules 144 and 144A. The Company shall use its best efforts to file
the reports required to be filed by it under the Securities Act and the Exchange
Act in a timely manner and, if at any time, the Company is not required to file
such reports, it will, upon the request of any Holder, make publicly available
other information so long as necessary to permit sales of their securities
pursuant to Rules 144 and 144A under the Securities Act. The Company covenants
that it will take such further action as any Holder may reasonably request, all
to the extent required from time to time to enable such Holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rules 144 and 144A (including the
requirements of Rule 144A(d)(4)). The Company will provide a copy of this
Agreement to prospective purchasers of Securities identified to the Company by
the Initial Purchasers upon request. Upon the request of any Holder of
Securities, the Company shall
11
deliver to such Holder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this Section
6 shall be deemed to require the Company to register any of its securities
pursuant to the Exchange Act.
7. Underwritten Registrations. If any of the Registrable Securities
covered by the Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
administer the offering ("MANAGING UNDERWRITERS") will be selected by the
Holders of a majority in aggregate principal amount of such Registrable
Securities to be included in such offering; provided, however, that such
Managing Underwriters shall be reasonably satisfactory to the Company.
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Registrable Securities on
the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. Miscellaneous.
(a) Remedies. The Companies acknowledge and agree that any failure by
the Companies to comply with its obligations under Section 1 and 2 hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, any Initial Purchaser or any Holder may obtain such relief as may be
required to specifically enforce the Companies' obligations under Sections 1 and
2 hereof. The Companies further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Companies 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. Each of the Companies represents
and warrants that 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
securities of any of the Companies 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 departures from
the provisions hereof may not be given, except by the Companies and the written
consent of the Holders of a majority in principal amount of the Registrable
Securities affected by such amendment, modification, supplement, waiver or
consents.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first-class mail,
facsimile transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Registrable Securities, at the most
current address given by such Holder to the Companies.
(2) if to the Initial Purchasers:
Credit Suisse First Boston Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Transactions Advisory Group
with a copy to:
12
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
(3) if to the Companies, at their address as follows:
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
and
Attention: General Counsel
with a copy to:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by recipient's facsimile machine operator, if sent by facsimile
transmission; and on the day delivered, if sent by overnight air courier
guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Companies, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon the
Companies and their respective successors and assigns.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) 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.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable, 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.
(k) Securities Held by the Company. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Registrable Securities
is required hereunder, Registrable Securities held by the
13
Company or its affiliates (other than subsequent Holders of Registrable
Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
14
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Initial Purchasers a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Initial Purchasers and the Companies in accordance
with its terms.
Very truly yours,
GTECH HOLDINGS CORPORATION
by:
-------------------------------
Name:
Title:
GTECH CORPORATION
by:
-------------------------------
Name:
Title:
GTECH RHODE ISLAND CORPORATION
by:
-------------------------------
Name:
Title:
GTECH LATIN AMERICA CORPORATION
by:
-------------------------------
Name:
Title:
15
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
Acting on behalf of themselves and as the Representatives of the
Initial Purchasers.
BY: CREDIT SUISSE FIRST BOSTON CORPORATION
by: ____________________________________
Name:
Title:
16