EXECUTION COPY
EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 27, 2003
by and among
FISERV, INC.
and
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
AND
THE OTHER INITIAL PURCHASERS
REFERRED TO HEREIN
as the Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of June
27, 2003 by and among FISERV, INC., a Wisconsin corporation (the "Company"), and
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO., ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED and the
other parties referred to in Annex A hereto (each, an "Initial Purchaser" and
collectively, the "Initial Purchasers").
This Agreement is made in accordance with the Purchase Agreement dated
June 24, 2003 (the "Purchase Agreement") by and among the Company and the
Initial Purchasers, which provides for, among other things, the sale by the
Company to the Initial Purchasers of $100,000,000 aggregate principal amount of
the Company's 3% Notes due 2008 (the "Notes"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchasers' obligations thereunder, the Company has
agreed to provide to the Initial Purchasers and their respective direct and
indirect transferees and assigns the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Affiliate" shall have the same meaning as given to that term in Rule
405 under the Securities Act or any successor rule thereunder.
"Applicable Period" shall have the meaning set forth in Section 3(u)
hereof.
"Business Day" shall mean any day other than a Saturday, a Sunday, or a
day on which banking institutions in The City of New York are authorized or
required by law, executive order or regulation to remain closed.
"Closing Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Commission" shall mean the Securities and Exchange Commission.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and assigns permitted under
the Indenture.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such depositary
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the Commission
promulgated thereunder.
"Exchange Offer" shall mean the offer by the Company to the Holders to
exchange all of the Registrable Notes (other than Private Exchange Notes) for a
like amount of Exchange Notes pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Commission Form S-4 (or, if applicable, on another
appropriate form) covering the Exchange Offer, and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all documents
incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Notes" shall mean the 3% Notes due 2008 of the Company to be
issued under the Indenture with terms identical to the Notes (except that (i)
interest thereon shall accrue from the last date to which interest has been paid
or duly made available for payment on the Notes or, if no such interest has been
paid or duly made available for payment, from the Issue Date, (ii) provisions
relating to an increase in the stated rate of interest thereon upon the
occurrence of a Registration Default shall be eliminated, and (iii) the transfer
restrictions and legends relating to restrictions on ownership and transfer
thereof without registration under the Securities Act shall be eliminated) and
offered to Holders of Registrable Notes in exchange for Registrable Notes
pursuant to the Exchange Offer.
"Holder" shall mean, as the context requires, (i) the Initial
Purchasers, for so long as they own any Registrable Notes, and each of their
respective successors, assigns and direct and indirect transferees who become
registered holders of Registrable Notes under the Indenture and (ii) each
Participating Broker-Dealer that holds Exchange Notes, for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such
Exchange Notes.
"Indenture" shall mean the Indenture, dated as of June 27, 2003, between
the Company, as issuer, and BNY Midwest Trust Company, as trustee, as the same
may be amended or supplemented from time to time in accordance with the terms
thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
forth in the preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(o) hereof.
"Issue Date" shall mean June 27, 2003, the date of original issuance of
the Notes.
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"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of Registrable Notes outstanding; provided, however, that
whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or any of its Affiliates shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage.
"NASD" shall mean National Association of Securities Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble to this
Agreement.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(u) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, joint venture, limited liability company, or a
government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Notes covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective amendments,
and in each case including all documents incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble to
this Agreement.
"Records" shall have the meaning set forth in Section 3(o) hereof.
"Registrable Notes" shall mean the Notes and, if issued, the Private
Exchange Notes; provided, however, that Notes or Private Exchange Notes, as the
case may be, shall cease to be Registrable Notes when (i) a Registration
Statement with respect to such Notes or Private Exchange Notes for the exchange
or resale thereof, as the case may be, shall have been declared effective under
the Securities Act and such Notes or Private Exchange Notes, as the case may be,
shall have been disposed of pursuant to such Registration Statement, (ii) such
Notes or Private Exchange Notes, as the case may be, shall have been sold to the
public pursuant to Rule 144 (or any similar provision then in force, but not
Rule 144A) under the Securities Act, (iii) such Notes or Private Exchange Notes,
as the case may be, shall have ceased to be outstanding or (iv) with respect to
the Notes, such Notes shall have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradeable by the
holder thereof (other than an Affiliate of the Company).
"Registration Default" shall have the meaning set forth in Section 2(e)
hereof.
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"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all Commission or NASD registration and filing fees,
including, if applicable, the reasonable fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any Holder of Registrable Notes in accordance with the rules and regulations of
the NASD, (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and disbursements
of one counsel for all underwriters or Holders as a group in connection with
blue sky qualification of any of the Exchange Notes or Registrable Notes) and
compliance with the rules of the NASD, (iii) all expenses of any Persons in
preparing or assisting in preparing, word processing, printing and distributing
any Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and distributing
any underwriting agreements, securities sales agreements or other similar
agreements, certificates representing the Notes, Private Exchange Notes (if any)
or Exchange Notes and other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) the fees and
disbursements of counsel for the Company and of the independent certified public
accountants of the Company or for any other Person, business or assets whose
financial statements are included in any Registration Statement or Prospectus,
including the expenses of any "cold comfort" letters required by or incident to
the performance of and compliance with this Agreement, (vi) the reasonable fees
and expenses of the Trustee, any registrar, the Depositary, any paying agent,
any escrow agent or any custodian, in each case including fees and disbursements
of their respective counsel, (vii) the reasonable fees and expenses of any
special experts retained by the Company in connection with any Registration
Statement, (viii) all fees and expenses incurred in connection with the listing,
if any, of the Notes, Private Exchange Notes (if any) or Exchange Notes on any
securities exchange or exchanges or on any quotation system and (ix) all fees
and disbursements relating to the qualification of the Indenture under the TIA.
"Registration Statement" shall mean any registration statement of the
Company which covers the Exchange Offer or the resale of the Registrable Notes
pursuant to the provisions of this Agreement (including, without limitation, any
Exchange Offer Registration Statement and any Shelf Registration Statement), and
all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all documents incorporated by reference
therein.
"Rule 144(k) Period" shall mean the period of two years (or such shorter
period as may hereafter be referred to in Rule 144(k) under the Securities Act
(or similar successor rule)) commencing on the Issue Date.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
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"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a registration statement of
the Company pursuant to the provisions of Section 2(b) hereof which covers the
resale of all of the Registrable Notes on an appropriate form under Rule 415
under the Securities Act, or any similar rule that may be adopted by the
Commission, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all documents incorporated by
reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended from time
to time, and the rules and regulations of the Commission promulgated thereunder.
"Trustee" shall mean the trustee with respect to the Notes, the Private
Exchange Notes (if any) and the Exchange Notes under the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. Except as set forth in Section 2(b) below, the
Company shall, for the benefit of the Holders, at the Company's cost, (i) cause
to be filed with the Commission on or prior to the 90th day after the Issue Date
an Exchange Offer Registration Statement on an appropriate form under the
Securities Act relating to the Exchange Offer, (ii) use its reasonable best
efforts to cause such Exchange Offer Registration Statement to be declared
effective under the Securities Act by the Commission on or prior to the 270th
day after the Issue Date, (iii) use its reasonable best efforts to keep such
Exchange Offer Registration Statement effective for not less than 20 Business
Days (or longer if required by applicable law or extended by the Company, at the
option of the Company) after the date notice of the Exchange Offer is mailed to
the Holders to and including the closing of the Exchange Offer, and (iv) use its
reasonable best efforts to complete the Exchange Offer no later than 45 days
after the Exchange Offer Registration Statement becomes effective. Promptly
after the effectiveness of the Exchange Offer Registration Statement, the
Company shall commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Notes for a like principal amount of Exchange Notes (provided that
such Holder (w) is not an Affiliate of the Company, (x) is not an Initial
Purchaser tendering Registrable Notes acquired directly from the Company on the
Issue Date, (y) acquired the Exchange Notes in the ordinary course of such
Holder's business and (z) has no arrangements or understandings with any Person
to participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes) to transfer such Exchange Notes from and after their receipt
without any limitations or restrictions under the Securities Act or under the
securities or blue sky laws of any state of the United States or other
jurisdiction.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
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(ii) keep the Exchange Offer open for acceptance for a period of not less
than 20 Business Days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law or extended by the
Company, at the option of the Company) (such period referred to herein
as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer with
respect to Notes represented by a global certificate;
(iv) permit Holders to withdraw tendered Notes at any time prior to the
close of business, New York time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice
to Holders, a telegram, telex, facsimile transmission or letter
setting forth the name of such Holder, the amount of Notes delivered
for exchange and a statement that such Holder is withdrawing his
election to have such Notes exchanged;
(v) notify each Holder that any Note not tendered by such Holder in the
Exchange Offer will remain outstanding and continue to accrue
interest, but will not retain any rights under this Agreement (except
in the case of the Initial Purchasers and Participating Broker-Dealers
as provided herein); and
(vi) otherwise comply in all respects with all applicable laws relating to
the Exchange Offer.
If any Initial Purchaser determines upon advice of its counsel that it
is not eligible to participate in the Exchange Offer with respect to the
exchange of Notes constituting any portion of an unsold allotment in its initial
placement pursuant to the Purchase Agreement, as soon as practicable upon
receipt by the Company of a written request from such Initial Purchaser prior to
the later of the consummation of the Exchange Offer and the 90th day after the
Issue Date, the Company shall issue and deliver to such Initial Purchaser in
exchange (the "Private Exchange") for the Notes held by such Initial Purchaser a
like aggregate principal amount of senior debt securities of the Company (the
"Private Exchange Notes") to be issued under the Indenture with terms identical
to the Exchange Notes (except that such Private Exchange Notes shall be subject
to the transfer restrictions and legends relating to restrictions on ownership
and transfer thereof without registration under the Securities Act that are
applicable to the Notes). The Exchange Notes, the Private Exchange Notes and the
Notes will vote and consent together on all matters as a single series under the
Indenture and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter.
The Private Exchange Notes shall be part of the same series as the Exchange
Notes, and the Company will use its reasonable best efforts to cause the CUSIP
Service Bureau to issue the same CUSIP number for the Private Exchange Notes as
for the Exchange Notes issued pursuant to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer and, if
applicable, the Private Exchange, the Company shall:
(i) accept for exchange all Notes or portions thereof duly tendered and
not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
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(ii) deliver, or cause to be delivered, to the Trustee for cancellation all
Notes or portions thereof so accepted for exchange by the Company; and
(iii) issue, and cause the Trustee to promptly authenticate and deliver to
each Holder, new Exchange Notes or Private Exchange Notes, as
applicable, equal in principal amount to the principal amount of the
Notes surrendered by such Holder.
Interest on each Exchange Note and Private Exchange Note issued pursuant
to the Exchange Offer and in the Private Exchange will accrue from the last date
on which interest was paid or duly made available for payment on the Note
surrendered in exchange therefor or, if no interest has been paid or duly made
available for payment on such Note, from the Issue Date.
To the extent not prohibited by any law or applicable interpretation of
the staff of the Commission, the Company shall use its reasonable best efforts
to complete the Exchange Offer as provided above, and shall comply with the
applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions other than the conditions referred to in
Section 2(b)(i) and (ii) below and those conditions that are customary in
similar exchange offers. Each Holder of Registrable Notes who wishes to exchange
such Registrable Notes for Exchange Notes in the Exchange Offer will be required
to make certain customary representations in connection therewith, including,
representations that (i) it is not an Affiliate of the Company, (ii) it is not
an Initial Purchaser tendering Registrable Notes acquired directly from the
Company on the Issue Date, (iii) the Exchange Notes to be received by it were
acquired in the ordinary course of its business and (iv) at the time of the
Exchange Offer, it has no arrangements or understandings with any Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Notes. The Company shall inform the Initial Purchasers, after
consultation with the Trustee, of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders in order to facilitate the tender of Registrable Notes in
the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement (other than the provisions in this
Section 2(a) and Section 2(e) that relate to the Exchange Offer) shall continue
to apply, mutatis mutandis, solely with respect to Registrable Notes that are
Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers,
and the Company shall have no further obligation to register the Registrable
Notes (other than Private Exchange Notes) held by any Holder under Section 2(b)
of this Agreement.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect the Exchange Offer as contemplated by Section 2(a)
hereof, (ii) if for any other reason (A) the Exchange Offer Registration
Statement is not declared effective within 270 days following the Issue Date or
(B) the Exchange Offer is not consummated within 45 days after effectiveness of
the Exchange Offer Registration Statement (provided that if the Exchange Offer
Registration Statement shall be declared effective after such 270-day period or
if the Exchange Offer shall be consummated after such 45-day period, then the
Company's obligations under this clause (ii)
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arising from the failure of the Exchange Offer Registration Statement to be
declared effective within such 270-day period or the failure of the Exchange
Offer to be consummated within such 45-day period, respectively, shall
terminate), (iii) if any Holder (other than an Initial Purchaser holding Notes
under the circumstances referred to in clause (iv) below) is not eligible to
participate in the Exchange Offer under applicable law or applicable
interpretations of the staff of the Commission or elects to participate in the
Exchange Offer but does not receive Exchange Notes which are freely tradeable
without any limitations or restrictions under the 1933 Act or (iv) upon the
request of any Initial Purchaser prior to the 90th day following the
consummation of the Exchange Offer with respect to any Registrable Notes held by
it, if such Initial Purchaser is not permitted, in the opinion of its counsel,
pursuant to applicable law or applicable interpretations of the staff of the
Commission, to participate in the Exchange Offer and thereby receive securities
that are freely tradeable without restriction under the Securities Act and the
securities or blue sky laws of any state of the United States or other
jurisdiction (any of the events specified in (i), (ii), (iii) or (iv) being
herein referred to as a "Shelf Registration Event" and the date of occurrence
thereof being herein referred to as a "Shelf Registration Event Date"), the
Company shall, at its cost:
(A) as promptly as practicable, but no later than (a) the
270th day after the Issue Date or (b) the 60th day after any such filing
obligation arises, whichever is later, file with the Commission a Shelf
Registration Statement relating to the resale of the Registrable Notes
by the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Notes
and set forth in such Shelf Registration Statement;
(B) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission as
promptly as practicable, but in no event later than the 60th day after
the date on which the Company is required to file the Shelf Registration
Statement; it being understood that in the event that the Company is
required to file a Shelf Registration Statement pursuant to clause (iii)
or (iv) above, the Company shall file and use its reasonable best
efforts to have declared effective by the Commission both an Exchange
Offer Registration Statement pursuant to Section 2(a) with respect to
all Registrable Notes other than the Private Exchange Notes (if any) and
a Shelf Registration Statement with respect to resales of Registrable
Notes held by the related Holder or Initial Purchaser, as applicable;
(C) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended
as required, in order to permit the Prospectus forming part thereof to
be usable by Holders for a period of two years after the Issue Date
(subject to extension pursuant to the last paragraph of Section 3) or,
if earlier, until all of the Registrable Notes covered by such Shelf
Registration Statement (i) have been sold pursuant to the Shelf
Registration Statement in accordance with the intended method of
distribution thereunder, (ii) become eligible for resale pursuant to
Rule 144(k) under the 1933 Act or (iii) cease to be Registrable Notes
(the "Effectiveness Period"); and
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(D) notwithstanding any other provisions hereof, use its
reasonable best efforts to ensure that (i) the Shelf Registration
Statement and each amendment thereto (if any) and the Prospectus forming
a part thereof and each amendment or supplement thereto comply in all
material respects with the Securities Act, (ii) neither the Shelf
Registration Statement nor any amendment thereto, when it becomes
effective, contains an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading and (iii) except during
circumstances described in the last two paragraphs of Section 3, neither
the Prospectus forming part of the Shelf Registration Statement nor any
amendment or supplement thereto includes an untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this provision
shall not apply to any statements or omissions made in reliance upon and
in conformity with information furnished in writing to the Company by a
Holder of Registrable Notes expressly for use therein.
During any 365-day period, the Company may, by notice to the Holders,
suspend the availability of the Shelf Registration Statement and the use of the
Prospectus for up to two periods, regardless of duration, but not more than an
aggregate of 60 days, or for one period not to exceed 30 consecutive days, if:
(i) such action is required by applicable law; (ii) such action is taken by the
Company in good faith and for valid business reasons, including the acquisition
or divestiture of assets or a material corporate transaction or event; or (iii)
the happening of any event or the discovery of any fact that makes any statement
made in the Shelf Registration Statement or Prospectus untrue in any material
respect or constitutes an omission to state a material fact in the Shelf
Registration Statement or Prospectus.
No Holder of Registrable Notes shall be entitled to include any of its
Registrable Notes in any Shelf Registration pursuant to this Agreement unless
and until such Holder agrees in writing to be bound by all of the provisions of
this Agreement applicable to such Holder and furnishes to the Company in
writing, within 5 Business Days after receipt of a request therefor, such
information as the Company may, after conferring with counsel with regard to
information relating to Holders that would be required by the Commission to be
included in such Shelf Registration Statement or Prospectus included therein,
reasonably request for inclusion in any Shelf Registration Statement or
Prospectus included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information with respect to
such Holder necessary to make the information previously furnished to the
Company by such Holder not materially misleading.
The Company shall not permit any securities other than Registrable Notes
to be included in the Shelf Registration.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with any Registration Statement filed pursuant to Section 2(a) and/or
2(b) hereof and will reimburse a single counsel designated in writing by the
Majority Holders to act as counsel for the Holders of the Registrable Notes in
connection with a Shelf Registration Statement, which other counsel shall be
reasonably satisfactory to the Company. Except as provided herein,
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each Holder shall pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder's Registrable Notes.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the Commission; provided, however, that
if, after it has been declared effective, the offering of Registrable Notes
pursuant to such Exchange Offer Registration Statement or Shelf Registration
Statement is interfered with by any stop order, injunction or other order or
requirement of the Commission or any other governmental agency or court, such
Exchange Offer Registration Statement or Shelf Registration Statement will be
deemed not to have been effective during the period of such interference, until
the offering of Registrable Notes pursuant to such Registration Statement may
legally resume. The Company will be deemed not to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain, effective
during the requisite period if either it voluntarily takes any action that would
result in any such Registration Statement not being declared effective or that
would result in the Holders of Registrable Notes covered thereby not being able
to exchange or offer and sell such Registrable Notes during that period, unless
such action is required or prohibited, as the case may be, by applicable law.
(e) Increase in Interest Rate. In the event that:
(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following the Issue Date, or
(ii) the Exchange Offer Registration Statement is not declared effective by
the Commission on or prior to the 270th day following the Issue Date,
or
(iii) the Exchange Offer is not consummated on or prior to the 45th day
following the effective date of the Exchange Offer Registration
Statement, or
(iv) if required, the Shelf Registration Statement is not filed with the
Commission on or prior to (A) the 270th day following the Issue Date
or (B) the 60th day after the filing obligation arises, whichever is
later, or
(v) if required, the Shelf Registration Statement is not declared
effective on or prior to the 60th day after the date on which the
Company is required to file such Shelf Registration Statement, or
(vi) the Shelf Registration Statement is declared effective by the
Commission but such Shelf Registration Statement ceases to be
effective or such Shelf Registration Statement or the Prospectus
included therein ceases to be usable in connection with resales of
Registrable Notes for any reason during the Effectiveness Period and
either (A) the aggregate number of days in any consecutive 365-day
period for which such Shelf Registration Statement or Prospectus shall
not be effective or usable exceeds 60 days, (B) such Shelf
Registration Statement or Prospectus shall not be effective or usable
for more
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than two periods (regardless of duration) in any consecutive 365-day
period or (C) such Shelf Registration Statement or Prospectus shall
not be effective or usable for a period of more than 30 consecutive
days, or
(vii) the Exchange Offer Registration Statement is declared effective by the
Commission but, if the Exchange Offer Registration Statement is being
used in connection with the resale of Exchange Notes as contemplated
by Section 3(u), the Exchange Offer Registration Statement ceases to
be effective or the Exchange Offer Registration Statement or the
Prospectus included therein ceases to be usable in connection with
resales of Exchange Notes for any reason during the 180-day period
referred to in Section 3(u) of this Agreement (as such period may be
extended pursuant to the last sentence of Section 3) and either (A)
the aggregate number of days in any consecutive 365-day period for
which the Exchange Offer Registration Statement or such Prospectus
shall not be effective or usable exceeds 60 days, (B) the Exchange
Offer Registration Statement or such Prospectus shall not be effective
or usable for more than two periods (regardless of duration) in any
consecutive 365-day period or (C) the Exchange Offer Registration
Statement or such Prospectus shall not be effective or usable for a
period of more than 30 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being herein
referred to as a "Registration Default"), the per annum interest rate borne by
the Registrable Notes or, in the case of clause (vii) above, the Exchange Notes,
as the case may be, shall be increased ("Additional Interest") by one-quarter of
one percent (0.25%) per annum immediately following such 90-day period in the
case of clause (i) above, immediately following such 270-day period in the case
of clause (ii) above, immediately following such 45-day period in the case of
clause (iii) above, immediately following any such 270-day period or 60-day
period, whichever ends later, in the case of clause (iv) above, immediately
following such 60-day period in the case of clause (v) above, immediately
following the 60th day in any consecutive 365-day period, as of the first day of
the third period in any consecutive 365-day period or immediately following the
30th consecutive day, whichever occurs first, that the Shelf Registration
Statement shall not be effective or such Shelf Registration Statement or the
Prospectus included therein shall not be usable as contemplated by clause (vi)
above, or immediately following the 60th day in any consecutive 365-day period,
as of the first day of the third period in any consecutive 365-day period or
immediately following the 30th consecutive day, whichever occurs first, that the
Exchange Offer Registration Statement shall not be effective or such Exchange
Offer Registration Statement or the Prospectus included therein shall not be
usable as contemplated by clause (vii) above, which rate will be increased by an
additional one-quarter of one percent (0.25%) per annum immediately following
each 90-day period that any Additional Interest continues to accrue under any
circumstances; provided that the aggregate increase in such per annum interest
rate may in no event exceed one-half of one percent (0.50%) per annum and the
Company will not be required to pay Additional Interest for more than one
Registration Default at any one time. Upon the filing of the Exchange Offer
Registration Statement after the 90-day period described in clause (i) above,
the effectiveness of the Exchange Offer Registration Statement after the 270-day
period described in clause (ii) above, the consummation of the Exchange Offer
after the 45-day period described in clause (iii) above, the filing of the Shelf
Registration Statement after the 270-day period or 60-day period, as the case
may be, described
11
in clause (iv) above, the effectiveness of the Shelf Registration Statement
after the 60-day period described in clause (v) above, or the Shelf Registration
Statement once again being effective or such Shelf Registration Statement and
the Prospectus included therein becoming usable in connection with resales of
Registrable Notes, as the case may be, in the case of clause (vi) above, or the
Exchange Offer Registration Statement once again becoming effective or such
Exchange Offer Registration Statement and the Prospectus included therein
becoming usable in connection with resales of Exchange Notes, as the case may
be, in the case of clause (vii) thereof, the interest rate borne by the
Registrable Notes or, in the case of clause (vii) above, the Exchange Notes, as
the case may be, from the date of such filing, effectiveness, consummation or
resumption of effectiveness or useability, as the case may be, shall be reduced
to 3% per annum so long as no other Registration Default shall have occurred and
shall be continuing at such time and the Company is otherwise in compliance with
this Section; provided, however, that, if after any such reduction in interest
rate, one or more Registration Defaults shall again occur, the interest rate
shall again be increased pursuant to the foregoing provisions.
The Company shall notify the Trustee within three Business Days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Additional Interest shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders of
Registrable Notes or Exchange Notes, as the case may be, on or before next
succeeding semi-annual interest payment date, immediately available funds in
sums sufficient to pay the Additional Interest accrued to such interest payment
date. Additional Interest due on each such interest payment date shall be
payable to the Holder of Registrable Notes or Exchange Notes, as the case may
be, entitled to receive the interest payable on such interest payment date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the applicable Event Date.
Anything herein to the contrary notwithstanding, any Holder who was, at
the time the Exchange Offer was pending and consummated, eligible to exchange,
and did not validly tender, its Notes for Exchange Notes in the Exchange Offer
will not be entitled to receive any Additional Interest.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchasers, the Holders and any Participating Broker-Dealers, the
Company acknowledges that any failure by the Company to comply with its
obligations under Section 2(a) through 2(d) hereof may result in material
irreparable injury to the Initial Purchasers, the Holders or the Participating
Broker-Dealers for which there is no adequate remedy at law, that it would not
be possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers, any Holder and any
Participating Broker-Dealer may obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2(a) through 2(d)
hereof.
3. Registration Procedures. In connection with the obligations of
the Company with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Company shall use its reasonable best efforts to:
(a) prepare and file with the Commission a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof within
the relevant time
12
period specified in Section 2 hereof on the appropriate form under the
Securities Act, which form (i) shall be selected by the Company, (ii) shall, in
the case of a Shelf Registration, be available for the sale of the Registrable
Notes by the selling Holders thereof and, in the case of an Exchange Offer, be
available for the exchange of Registrable Notes and (iii) shall comply as to
form in all material respects with the requirements of the applicable form and
include all financial statements required by the Commission to be filed
therewith; use its reasonable best efforts to cause such Registration Statement
to become effective and remain effective and usable for resales in accordance
with Section 2 hereof and to promptly notify Holders of such effectiveness;
provided, however, that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company shall furnish to and afford the Holders of the Registrable Notes and
each such Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity (which shall be at least four Business Days) to review
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be
filed; and not file any Registration Statement or Prospectus or any amendments
or supplements thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document if the Majority
Holders or such Participating Broker-Dealer, as the case may be, their counsel
or the managing underwriters, if any, shall reasonably object in a timely
manner;
(b) prepare and file with the Commission such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be and cause each Prospectus to be
supplemented, if so determined by the Company or requested by the Commission, by
any required prospectus supplement and as so supplemented to be filed pursuant
to Rule 424 (or any similar provision then in force) under the Securities Act,
and deliver copies thereof to the Holders promptly after its preparation and
filing with the Commission; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition of all
securities covered by each Registration Statement during the Effectiveness
Period or the Applicable Period, as the case may be, in accordance with the
intended method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Notes included in the Shelf Registration Statement, at least three
Business Days prior to filing, that a Shelf Registration Statement with respect
to the Registrable Notes is being filed and advising such Holder that the
distribution of Registrable Notes will be made in accordance with the method
selected by the Majority Holders; (ii) furnish to each Holder of Registrable
Notes included in the Shelf Registration Statement and to each underwriter of an
underwritten offering of Registrable Notes, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto, and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public sale or
other disposition of the Registrable Notes; and (iii) consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of Registrable Notes included
13
in the Shelf Registration Statement in connection with the offering and sale of
the Registrable Notes covered by the Prospectus or any amendment or supplement
thereto;
(d) in the case of a Shelf Registration, register or qualify the
Registrable Notes or Exchange Notes under all applicable state securities or
"blue sky" laws of such jurisdictions by the time the applicable Registration
Statement is declared effective by the Commission as any Holder of Registrable
Notes or Exchange Notes covered by a Registration Statement and each underwriter
of an underwritten offering of Registrable Notes shall reasonably request in
writing in advance of such date of effectiveness, and do any and all other acts
and things which may be reasonably necessary or advisable to enable such Holder
and, if applicable, underwriter to consummate the disposition in each such
jurisdiction of such Registrable Notes or Exchange Notes owned by such Holder;
provided, however, that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to qualify but for this Section 3(d), (ii) file
any general consent to service of process in any jurisdiction where it would not
otherwise be subject to such service of process or (iii) subject itself to
taxation in any such jurisdiction if it is not then so subject;
(e) (1) in the case of a Shelf Registration or (2) if Participating
Broker-Dealers from whom the Company has received prior written notice that they
will be utilizing the Prospectus contained in the Exchange Offer Registration
Statement as provided in Section 3(u) hereof, are seeking to sell Exchange Notes
and are required to deliver Prospectuses, promptly notify each Holder of
Registrable Notes, or such Participating Broker-Dealers, as the case may be,
their counsel and the managing underwriters, if any, and promptly confirm such
notice in writing (i) when a Registration Statement has become effective and
when any post-effective amendments thereto become effective, (ii) of any request
by the Commission or any state securities authority for amendments and
supplements to a Registration Statement or Prospectus or for additional
information after the Registration Statement has become effective, (iii) of the
issuance by the Commission or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the qualification of
the Registrable Notes or the Exchange Notes to be offered or sold by any
Participating Broker-Dealer in any jurisdiction described in paragraph 3(d)
hereof or the initiation of any proceedings for that purpose, (iv) in the case
of a Shelf Registration, if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Notes covered thereby, the
representations and warranties of the Company contained in any purchase
agreement, securities sales agreement or other similar agreement cease to be
true and correct in all material respects, (v) of the happening of any event or
the failure of any event to occur or the discovery of any facts, during the
Effectiveness Period or the Applicable Period, which makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or which causes such Registration Statement or Prospectus to omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, and (vi)
of the reasonable determination of the Company that a post-effective amendment
to the Registration Statement would be appropriate;
(f) obtain the withdrawal of any order suspending the effectiveness
of a Registration Statement at the earliest possible moment;
14
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Notes included within the coverage of such Shelf Registration
Statement, without charge, at least one conformed copy of each Registration
Statement relating to such Shelf Registration and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Notes to facilitate the timely preparation and delivery
of certificates representing Registrable Notes to be sold and not bearing any
restrictive legends and in such denominations (consistent with the provisions of
the Indenture) and registered in such names as the selling Holders or the
underwriters may reasonably request at least two Business Days prior to the
closing of any sale of Registrable Notes pursuant to such Shelf Registration
Statement;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, promptly after the occurrence of any event specified in Section
3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, prepare a supplement or
post-effective amendment to such Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Notes or Exchange Notes, as the case may be, such Prospectus will
not include any untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and to notify each Holder to suspend
use of the Prospectus as promptly as practicable after the occurrence of such an
event, and each Holder hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to correct such misstatement
or omission;
(j) in the case of a Shelf Registration, a reasonable time prior to
the filing of any document which is to be incorporated by reference into a
Registration Statement or a Prospectus after the initial filing of a
Registration Statement, provide a reasonable number of copies of such document
to the Holders; and make such of the representatives of the Company as shall be
reasonably requested by the Holders of Registrable Notes or the Initial
Purchasers on behalf of such Holders available for discussion of such document;
(k) obtain a CUSIP number for all Exchange Notes or Registrable
Notes, as the case may be, not later than the effective date of a Registration
Statement, and provide the Trustee with certificates for the Exchange Notes or
the Registrable Notes, as the case may be, in a form eligible for deposit with
the Depositary;
(l) cause the Indenture to be qualified under the TIA, in connection
with the registration of the Exchange Notes or Registrable Notes, as the case
may be, and effect such changes to such documents as may be required for them to
be so qualified in accordance with the terms of the TIA and execute, and 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 Commission to
enable such documents to be so qualified in a timely manner;
15
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten offerings
and take all such other appropriate actions in connection therewith as are
reasonably requested by the Holders of at least 25% in aggregate principal
amount of the Registrable Notes in order to expedite or facilitate the
registration or the disposition or the Registrable Notes;
(n) in the case of a Shelf Registration, whether or not an
underwriting agreement is entered into and whether or not the registration is an
underwritten registration, if requested by (x) the Initial Purchasers, in the
case where the Initial Purchasers hold Notes acquired by them as part of their
initial placement or (y) Holders of at least 25% in aggregate principal amount
of the Registrable Notes covered thereby: (i) make such representations and
warranties to Holders of such Registrable Notes and the underwriters (if any),
with respect to the business of the Company and the subsidiaries of the Company
as then conducted and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in each
case, as are customarily made by issuers to underwriters in underwritten
offerings, and confirm the same if and when requested; (ii) obtain opinions of
counsel to the Company and updates thereof (which may be in the form of a
reliance letter) in form and substance reasonably satisfactory to the managing
underwriters (if any) and the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold, addressed to each selling Holder and
the underwriters (if any) covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such underwriters (it being agreed that the matters to be covered
by such opinion may be subject to customary qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters (if any) from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
underwritten offerings and such other matters as reasonably requested by such
underwriters in accordance with Statement on Auditing Standards No. 72; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 4 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable Notes covered
by such Registration Statement and the managing underwriters) customary for such
agreements with respect to all parties to be indemnified pursuant to said
Section (including, without limitation, such underwriters and selling Holders);
and in the case of an underwritten registration, the above requirements shall be
satisfied at each closing under the related underwriting agreement or as and to
the extent required thereunder;
(o) if (l) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make reasonably available for inspection by any selling
Holder of Registrable Notes or Participating Broker-Dealer, as applicable, who
certifies to the Company that it has a current intention to sell such
Registrable Notes or Exchange Notes, any underwriter participating in any such
disposition of Registrable
16
Notes, if any, and any attorney, accountant or other agent retained by any such
selling Holder, Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept, during the
Company's normal business hours, all financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company and its subsidiaries to supply all
relevant information in each case reasonably requested by any such Inspector in
connection with such Registration Statement; provided, however, that records and
information which the Company determines, in good faith, to be confidential and
any Records and information which it notifies the Inspectors are confidential
shall not be disclosed to any Inspector except where (i) the disclosure of such
Records or information is necessary to avoid or correct a material misstatement
or omission in such Registration Statement, (ii) the release of such Records or
information is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or is necessary in connection with any action, suit or
proceeding or (iii) such Records or information previously has been made
generally available to the public; each Inspector will be required to agree in
writing that Records and information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company unless and
until such is made generally available to the public through no fault of an
Inspector or a selling Holder; and each Inspector will be required to further
agree in writing that it will, upon learning that disclosure of such Records or
information is sought in a court of competent jurisdiction, or in connection
with any action, suit or proceeding, give notice to the Company and allow the
Company at its expense to undertake appropriate action to prevent disclosure of
the Records and information deemed confidential;
(p) comply with all applicable rules and regulations of the
Commission so long as any provision of this Agreement shall be applicable and
make generally available to its securityholders earning statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Registrable Notes are sold to underwriters in a firm commitment
or best efforts underwritten offering and (ii) if not sold to underwriters in
such an offering, commencing on the first day of the first fiscal quarter of the
Company after the effective date of a Registration Statement, which statements
shall cover said 12- month periods;
(q) upon consummation of an Exchange Offer or a Private Exchange,
obtain a customary opinion of counsel to the Company addressed to the Trustee
for the benefit of all Holders participating in the Exchange Offer or the
Private Exchange, as the case may be, substantially to the effect that (i) the
Company has duly authorized, executed and delivered such Exchange Notes or
Private Exchange Notes, as the case may be, and (ii) such Exchange Notes or the
Private Exchange Notes, as the case may be, constitutes valid and and legally
binding obligations of the Company, enforceable against the Company, in
accordance with their respective terms (in each case, with customary
exceptions);
(r) if an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to such
other Person as directed
17
by the Company) in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, the Company shall ▇▇▇▇, or cause to be marked, on
such Registrable Notes delivered by such Holders that such Registrable Notes are
being canceled in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be; (it being understood that in no event shall such Registrable
Notes be marked as paid or otherwise satisfied);
(s) cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in connection
with any filings required to be made with the NASD;
(t) take all other reasonable steps necessary to effect the
registration of the Exchange Offer or the resale of Registrable Notes
contemplated hereby;
(u) in the case of the Exchange Offer Registration Statement, (A)
(i) include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to the
Initial Purchasers or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the positions
taken or policies made by the staff of the Commission with respect to the
potential "underwriter" status of any broker-dealer that holds Registrable Notes
acquired for its own account as a result of market-making activities or other
trading activities (a "Participating Broker-Dealer") and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes to be received by such Participating Broker-Dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by the staff
of the Commission or such positions or policies, in the reasonable judgment of
the Initial Purchasers or such other representative, represent the prevailing
views of the staff of the Commission, including a statement that any
Participating Broker-Dealer who receives Exchange Notes for Registrable Notes in
the Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes, (ii) furnish to each Participating Broker-Dealer
who has delivered to the Company the notice referred to in Section 3(e), without
charge, as many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary Prospectus, and any amendment
or supplement thereto, as such Participating Broker-Dealer may reasonably
request (it being understood that the Company hereby consents to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto by any Person subject to the prospectus delivery
requirements of the Securities Act, including all Participating Broker-Dealers,
in connection with the sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto), (iii) keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to permit such Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such Persons must comply with such
requirements under the Securities Act and applicable rules and regulations in
order to resell the Exchange Notes; provided, however, that such period shall
not be required to exceed 180 days (or such longer period if extended pursuant
to the last sentence of Section 3 hereof) (the "Applicable Period") and (iv)
include in the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the following
provision:
18
"If the exchange offeree is a broker-dealer holding
Registrable Notes acquired for its own account as a result of
market-making activities or other trading activities, it will
deliver a prospectus meeting the requirements of the
Securities Act in connection with any resale of Exchange Notes
received in respect of such Registrable Notes pursuant to the
Exchange Offer";
and (y) a statement to the effect that by a broker-dealer making the
acknowledgment referred to in clause (x) and by delivering a Prospectus in
connection with the exchange of Registrable Notes, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the Securities
Act and (B) the Company agrees to deliver to the Initial Purchasers or to
another representative of the Participating Broker-Dealers, if Participating
Broker-Dealers will participate in the Exchange Offer and if requested by the
Initial Purchasers or such other representative of Participating Broker-Dealers,
on behalf of the Participating Broker-Dealers, (i) upon consummation of the
Exchange Offer, an opinion of counsel in form and substance reasonably
satisfactory to the Initial Purchasers or such other representative of the
Participating Broker-Dealers, covering the matters customarily covered in
opinions requested in connection with Exchange Offer Registration Statements and
such other matters as may be reasonably requested (it being agreed that the
matters to be covered by such opinion may be subject to customary qualifications
and exceptions), (ii) upon consummation of the Exchange Offer, an officers'
certificate containing certifications substantially similar to those set forth
in Section 5(c) of the Purchase Agreement and such additional certifications as
are customarily delivered in a public offering of debt securities and (iii) upon
effectiveness of the Exchange Offer Registration Statement and upon consummation
of the Exchange Offer, a comfort letter, in each case, in customary form if
permitted by Statement on Auditing Standards No. 72.
The Company may require each seller of Registrable Notes as to which any
registration is being effected to furnish to the Company with such information
regarding such seller as may be required by the staff of the Commission to be
included in a Registration Statement. The Company may exclude from such
registration the Registrable Notes of any seller who unreasonably fails to
furnish such information within a reasonable time after receiving such request.
The Company shall have no obligation to register under the Securities Act the
Registrable Notes of a seller who so fails to furnish such information.
In the case of a Shelf Registration Statement, or if Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
this Section 3(u) are seeking to sell Exchange Notes and are required to deliver
a Prospectus, each Holder agrees that, upon receipt of any notice from the
Company of the occurrence of any event specified in Section 3(e)(ii), 3(e)(iii),
3(e)(v) or 3(e)(vi), such Holder will forthwith discontinue disposition of
Registrable Notes or Exchange Notes, as the case may be, pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) or until it is
advised in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies in such Holder's
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Notes or Exchange Notes, as the case
may be, current at the time of receipt of such
19
notice. If the Company shall give any such notice to suspend the disposition of
Registrable Notes or Exchange Notes, as the case may be, pursuant to a
Registration Statement, the Company shall use its best efforts to file and have
declared effective (if an amendment) as soon as practicable after the resolution
of the related matters an amendment or supplement to the Registration Statement
and shall extend the period during which such Registration Statement is required
to be maintained effective and usable for resales pursuant to this Agreement by
the number of days in the period from and including the date of the giving of
such notice to and including the date when the Company shall have made available
to the Holders (x) copies of the supplemented or amended Prospectus necessary to
resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. (a) In connection with any
Registration Statement, the Company shall indemnify and hold harmless each
Initial Purchaser, each Holder, each underwriter who participates in an offering
of the Registrable Notes, each Participating Broker-Dealer, each Person, if any,
who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and each of their respective
partners, directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment thereto) or any preliminary
prospectus or Prospectus (or any amendment or supplement thereto),
covering Registrable Notes or Exchange Notes, as applicable, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission in the Registration
Statement (or any amendment thereto) or any preliminary prospectus or
Prospectus (or any amendment or supplement thereto); provided that
(subject to Section 4(d) hereof) any such settlement is effected with
the prior written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including the
fees and disbursements of counsel, except to the extent otherwise
expressly provided in Section 4(c) hereof), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement
20
or omission made in reliance upon and in conformity with written information
furnished to the Company by any Initial Purchaser, Holder, underwriter or
Participating Broker-Dealer for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto).
(b) Each Initial Purchaser, each Holder, each underwriter and each
Participating Broker-Dealer agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors and each officer of the Company who
signed the Registration Statement), each other Initial Purchaser, each other
selling Holder, each other underwriter and each other Participating
Broker-Dealer and each Person, if any, who controls the Company, any other
Initial Purchaser, any other selling Holder, any other underwriter or any other
Participating Broker-Dealer within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by such Initial Purchaser, Holder, underwriter or
Participating Broker-Dealer, as the case may be, expressly for use in such
Registration Statement (or any amendment thereto) or any such Prospectus (or any
amendment or supplement thereto); provided, however, that no such Holder shall
be liable for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Registrable Notes or Exchange Notes, as
the case may be, pursuant to the related Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability which it may have under this Section 4 to the extent that it is
not materially prejudiced by such failure as a result thereof, and in any event
shall not relieve it from liability which it may have otherwise on account of
this indemnity agreement. In the case of parties indemnified pursuant to Section
4(a) or (b) above, counsel to the indemnified parties shall be selected by such
parties. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. In
addition, the indemnifying party shall be entitled, to the extent that it
wishes, jointly with any other similarly notified indemnifying party, to assume
the defense of any action brought against an indemnified party with counsel
reasonably satisfactory to the indemnified party (which counsel shall not also
be counsel to the indemnifying party unless the indemnified party shall
specifically consent thereto). After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such action, the
indemnifying party shall not be liable to the indemnified party under this
Section 4 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that an indemnified party shall have
the
21
right to employ one counsel (in addition to local counsel) to represent such
indemnified party and the respective officers, employees and controlling persons
of such indemnified party who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the indemnified party
against any indemnifying party under this Section 4 if, in the judgment of the
indemnified party, either (i) there is an actual or potential conflict between
the position of the indemnifying party, on the one hand, and the indemnified
party, on the other hand, or (ii) there may be defenses available to the
indemnified party that are different from or additional to those available to
the indemnifying party (in either event the indemnifying party shall not have
the right to assume the defense of such action on behalf of the indemnified
party), whereupon all related reasonable fees and expenses shall be borne by the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 4 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional written release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have validly requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel pursuant to Section 4(a), such indemnifying party agrees
that it shall be liable for any settlement of the nature contemplated by Section
4(a)(ii) effected without its written consent if (i) such settlement is entered
into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement; provided,
however, that an indemnifying party shall not be liable for any such settlement
effected without its consent if such indemnifying party, prior to the date of
such settlement, (1) reimburses such indemnified party in accordance with such
request for the amount of such fees and expenses of counsel as the indemnifying
party believes in good faith to be reasonable and (2) provides written notice to
the indemnified party that the indemnifying party disputes in good faith the
reasonableness of the unpaid balance of such fees and expenses and sets forth
the basis for such dispute.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unenforceable by an indemnified party
although applicable in accordance with its terms, each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
such indemnified party, as incurred, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Holders, on the other hand, from the offering of the Notes, the
Exchange Notes and the Registrable Notes (taken together) included in such
offering or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, on the one hand, and the Holders, on the other
22
hand, in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations; provided, however, that 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 that was not guilty of such
fraudulent misrepresentation.
The relative benefits received by the Company from the offering of the
Notes, the Exchange Notes and the Registrable Notes (taken together) included in
such offering shall in each case be deemed to include the proceeds received by
the Company in connection with the offering of the Notes pursuant to the
Purchase Agreement. The parties hereto agree that any underwriting discount or
commission or reimbursement of fees paid to the Initial Purchasers pursuant to
the Purchase Agreement shall not be deemed to be a benefit received by the
Initial Purchasers in connection with the offering of the Exchange Notes or
Registrable Notes included in such offering.
The relative fault of such indemnifying party or parties, on the one hand,
and the indemnified party or parties, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or parties or such
indemnified party or parties, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 4 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 4, each Affiliate of
a Holder, and each partner, director, officer, employee and Person, if any, who
controls a Holder or such Affiliate within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Holder, and each director of the Company and each officer
who signed the Registration Statement and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as the Company.
5. Participation in an Underwritten Registration. No Holder may
participate in an underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Notes on the basis provided in the
underwriting arrangement approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements, lock-up letters and
other documents reasonably required under the terms of such underwriting
arrangements.
23
6. Selection of Underwriters. The Holders of Registrable Notes
covered by the Shelf Registration Statement who desire to do so may sell
Registrable Notes covered by such Shelf Registration in an underwritten
offering, subject to the provisions of Section 3(m) hereof. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer such offering will be selected by the Holders of a majority
in aggregate principal amount of the Registrable Notes included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule l44A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Notes remain outstanding, the Company covenants that it will file
the reports required to be filed by it under the Securities Act and Section
13(a) or 15(d) of the Exchange Act; provided, however, that if the Company
ceases to be so required to file such reports, it will, upon the request of any
Holder of Registrable Notes (a) make publicly available such information
(including, without limitation, the information specified in Rule 144(c)(2)
under the Securities Act) as is necessary to permit sales of its securities
pursuant to Rule 144 under the Securities Act, (b) promptly deliver or cause to
be delivered such information (including, without limitation, the information
specified in Rule 144A(d)(4) under the Securities Act) to a prospective
purchaser as is necessary to permit sales of its securities pursuant to Rule
144A under the Securities Act and (c) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by (i)
Rule 144 under the Securities Act, as such rule may be amended from time to
time, (ii) Rule 144A under the Securities Act, as such rule may be amended from
time to time, or (iii) any similar rules or regulations hereafter adopted by the
Commission. Upon the request of any Holder of Registrable Notes, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into,
nor will the Company on or after the date of this Agreement enter into, any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or which otherwise conflicts with the
provisions hereof. The provisions hereof do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's other
issued and outstanding securities.
(c) Amendments and Waivers. The provisions of this Agreement,
including this clause (c), may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority in
aggregate principal amount of the outstanding Registrable Notes affected by such
amendment, modification, supplement, waiver or departure; provided that no
amendment, modification or supplement or waiver or consent to the departure with
respect to the provisions of Section 4 hereof shall be effective as against any
Holder of Registrable Notes unless consented to in writing by such Holder of
Registrable Notes. Notwithstanding the foregoing sentence, (i) this Agreement
may be amended, without the consent of any Holder of Registrable Notes, by
written agreement signed by the Company and
24
the Initial Purchasers, to cure any ambiguity, correct or supplement any
provision of this Agreement that may be inconsistent with any other provision of
this Agreement or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with
other provisions of this Agreement, (ii) this Agreement may be amended, modified
or supplemented, and waivers and consents to departures from the provisions
hereof may be given, by written agreement signed by the Company and the Initial
Purchasers to the extent that any such amendment, modification, supplement,
waiver or consent is, in their reasonable judgment, necessary or appropriate to
comply with applicable law (including any interpretation of the staff of the
Commission) or any change therein and (iii) to the extent any provision of this
Agreement relates to the Initial Purchasers, such provision may be amended,
modified or supplemented, and waivers or consents to departures from such
provisions may be given, by written agreement signed by the Initial Purchasers
and the Company. Each Holder of Registrable Notes shall be bound by any
amendment or waiver effected pursuant to this Section 7(c), whether or not any
notice, writing or marking indicating such amendment or waiver appears on such
Registrable Notes or is delivered to such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 7(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Company, initially at the Company's address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 7(d).
All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is acknowledged, if telecopied; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of the
Initial Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Notes in violation of the terms of the Purchase Agreement or the
Indenture. If any transferee of any Holder shall acquire Registrable Notes in
any manner, whether by operation of law or otherwise, such Registrable Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Notes, such transferee shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such transferee shall be entitled to receive the benefits
hereof.
25
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary of the agreements made hereunder between the Initial Purchasers and
the Company, and the Initial Purchasers shall have the right to enforce such
agreements directly to the extent any of them deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder.
(g) Counterparts; Facsimile. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, and
signature pages may be delivered by facsimile, 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, INCLUDING
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, 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) Notes Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or any Affiliates
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
26
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
FISERV, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President and Chief Executive
Officer
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
For itself and on behalf of the other Initial Purchasers
S-1
ANNEX A
INITIAL PURCHASERS
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
Banc One Capital Markets, Inc
Wachovia Securities, LLC
BNY Capital Markets, Inc.
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
SunTrust Capital Markets, Inc.
Annex A-1