EXHIBIT 3.2
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REGISTRATION RIGHTS AGREEMENT
by and among
ABITIBI-CONSOLIDATED COMPANY OF CANADA
ABITIBI-CONSOLIDATED INC.
and
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
CIBC WORLD MARKETS CORP.
SCOTIA CAPITAL (USA) INC.
NBF SECURITIES (USA) CORP.
RBC DOMINION SECURITIES CORPORATION
ABN AMRO INCORPORATED
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON LLC
TOKYO-MITSUBISHI INTERNATIONAL PLC
Dated as of June 15, 2004
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of June 15, 2004, by and among Abitibi-Consolidated Company of
Canada, a Quebec corporation (the "Company"), Abitibi-Consolidated Inc., a
Canadian corporation (the "Guarantor"), and Banc of America Securities LLC,
Citigroup Global Markets Inc., Banc of America Securities LLC, CIBC World
Markets Corp., Scotia Capital (USA) Inc., NBF Securities (USA) Corp., RBC
Dominion Securities Corporation, ABN AMRO Incorporated, ▇▇ ▇▇▇▇▇ Securities
Corporation, Credit Suisse First Boston LLC and Tokyo-Mitsubishi International
plc (each an "Initial Purchaser" and, collectively, the "Initial Purchasers"),
each of whom has agreed to purchase the Company's Floating Rate Notes due 2011
(the "Floating Rate Notes") and the Company's 7.75% Notes due 2011 (the "Fixed
Rate Notes"). The Floating Rate Notes and the Fixed Rate Notes issued on the
Closing Date (as defined below) pursuant to the Purchase Agreement (as defined
below) are hereinafter collectively referred to as the "Initial Notes".
This Agreement is made pursuant to the Purchase Agreement, dated as of
June 10, 2004 (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers (i) for your benefit and for the benefit of each other
Initial Purchaser and (ii) for the benefit of the holders from time to time of
the Notes (including you and each other Initial Purchaser). In order to induce
the Initial Purchasers to purchase the Initial Notes, the Company has agreed to
provide the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 5(k) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
ADDITIONAL INTEREST PAYMENT DATE: With respect to the Initial Notes,
each Interest Payment Date.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CLOSING DATE: The date of this Agreement.
COMMISSION: The United States Securities and Exchange Commission.
CONSUMMATE: A registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company to the Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of Initial Notes
that were tendered by Holders thereof pursuant to the Exchange Offer.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The United States Securities Exchange Act of 1934, as
amended.
EXCHANGE NOTES: The Floating Rate Notes and the Fixed Rate Notes, of
the same series, respectively under the Indenture as the Floating Rate Notes and
Fixed Rate Notes issued on the Closing Date pursuant to the Purchase Agreement,
including the Guarantees attached thereto, to be issued to Holders in exchange
for Transfer Restricted Securities pursuant to this Agreement.
EXCHANGE OFFER: The registration by the Company under the Securities
Act of the Exchange Notes pursuant to a Registration Statement pursuant to which
the Company offers the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted Securities
held by such Holders for Exchange Notes in an aggregate principal amount equal
to the aggregate principal amount of the Transfer Restricted Securities tendered
in such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Initial Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Securities Act.
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDENTURE: The Indenture, dated as of June 15, 2004, among the Company,
the Guarantor and The Bank of Nova Scotia Trust Company of New York, as trustee
(the "Trustee"), pursuant to which the Notes are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with the terms
thereof.
INITIAL PLACEMENT: The issuance and sale by the Company of the Initial
Notes to the Initial Purchasers pursuant to the Purchase Agreement.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Initial Notes and the Exchange Notes.
PERSON: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
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REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
SECURITIES ACT: The United States Securities Act of 1933, as amended.
SHELF FILING DEADLINE: As defined in Section 4(a) hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4(a) hereof.
TRANSFER RESTRICTED SECURITIES: Each Initial Note, until the earliest
to occur of (a) the date on which such Initial Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Securities Act, (b)
the date on which such Initial Note has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration Statement
and (c) the date on which such Initial Note is distributed to the public
pursuant to Rule 144 under the Securities Act or by a Broker-Dealer pursuant to
the "Plan of Distribution" contemplated by the Exchange Offer Registration
Statement (including delivery of the Prospectus contained therein).
TRUST INDENTURE ACT: The United States Trust Indenture Act of 1939 (15
U.S.C. Section 77aaa 77bbbb) as in effect on the date of the Indenture.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT.
(A) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(B) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER.
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company and the Guarantor shall (i) cause to be
filed with the Commission as soon as practicable after the Closing Date, but in
no event later than 90 days after the Closing Date, a Registration Statement
under the Securities Act relating to the Exchange Notes and the Exchange Offer,
(ii) use their reasonable best efforts to cause such Registration Statement to
become effective at the earliest possible time, but in no event later than 180
days after the Closing Date,
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(iii) in connection with the foregoing, file (A) all pre-effective amendments to
such Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Exchange Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such Registration Statement,
commence the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Exchange Notes held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no
event shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company shall cause the Exchange
Offer to comply with all applicable United States federal and state securities
laws; PROVIDED, HOWEVER, that in no event shall the Company be obligated to file
a prospectus in Canada to qualify the Exchange Notes for distribution in any
province or territory in Canada. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement. The Company
shall use its reasonable best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 210 days
after the Closing Date.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Company and the Guarantor shall use their reasonable best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) below to
the extent necessary to ensure that it is available for resales of Exchange
Notes acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of
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the Commission as announced from time to time, for a period ending on the
earlier of (i) 180 days from the date on which the Exchange Offer Registration
Statement is declared effective and (ii) the date on which a Broker-Dealer is no
longer required to deliver a prospectus in connection with market-making or
other trading activities.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180-day (or shorter as provided in the foregoing sentence) period in order to
facilitate such resales.
SECTION 4. SHELF REGISTRATION.
(A) SHELF REGISTRATION. If (i) the Company is not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with), (ii) for any reason the Exchange Offer is not Consummated within 210 days
after the Closing Date, or (iii) with respect to any Holder of Transfer
Restricted Securities such Holder notifies the Company prior to the 20th day
following the Consummation of the Exchange Offer that (A) such Holder is
prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange Notes acquired by
it in the Exchange Offer to the public without delivering a prospectus and that
the Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) such Holder is
a Broker-Dealer and holds Initial Notes acquired directly from the Company or
one of its affiliates, then, upon such Holder's request, the Company and the
Guarantor shall
(x) cause to be filed a shelf registration statement pursuant
to Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "Shelf
Registration Statement") on or prior to the earliest to occur of, but
in no event earlier than 90 days after the Closing Date, (1) the 60th
day after the date on which the Company determines that it is not
required to file the Exchange Offer Registration Statement, (2) the
60th day after the date on which the Company receives notice from a
Holder of Transfer Restricted Securities as contemplated by clause (ii)
above, and (3) the 210th day after the Closing Date (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the
Holders of which shall have provided the information required pursuant
to Section 4(b) hereof; and
(y) use their reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission on or
before the 60th day after the Shelf Filing Deadline.
The Company and the Guarantor shall use their reasonable best efforts
to keep such Shelf Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time
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to time, for a period of at least two years following the Closing Date (or
shorter period that will terminate when all the Notes covered by such Shelf
Registration Statement have been sold pursuant to such Shelf Registration
Statement).
(B) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder as to which any Shelf Registration
Statement is being effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. ADDITIONAL INTEREST. If (i) any of the Registration
Statements required by this Agreement is not filed with the Commission on or
prior to the date specified for such filing in this Agreement, (ii) any of such
Registration Statements has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) the Exchange Offer has not been Consummated
within 30 business days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose without
being succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company hereby agrees that the interest rate borne
by the Transfer Restricted Securities shall be increased by 0.25% per annum
during the 90-day period immediately following the occurrence of any
Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90-day period, but in no event shall such increase exceed 1.00% per
annum. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the interest rate borne by the
relevant Transfer Restricted Securities will be reduced to the original interest
rate borne by such Transfer Restricted Securities; provided, however, that, if
after any such reduction in interest rate, a different Registration Default
occurs, the interest rate borne by the relevant Transfer Restricted Securities
shall again be increased pursuant to the foregoing provisions.
All obligations of the Company and the Guarantor set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such Note
shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES.
(A) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Guarantor shall comply with all of the
provisions of Section 6(c) below, shall use their reasonable best efforts to
effect such exchange to permit the sale of Transfer Restricted
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Securities being sold in accordance with the intended method or methods of
distribution thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company and the Guarantor hereby agree to seek a
no-action letter or other favorable decision from the Commission
allowing the Company and the Guarantor to Consummate an Exchange Offer
for such Initial Notes. The Company and the Guarantor each hereby
agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Company and the
Guarantor each hereby agrees, however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue a
favorable resolution by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (which may include any
no-action letter obtained pursuant to clause (i) above), and (2) must
comply with the registration and prospectus delivery requirements of
the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction should be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Initial Notes acquired by such Holder directly from the
Company.
(B) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company and the Guarantor shall comply with all the
provisions of Section 6(c) below and shall use their reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will, in accordance with
the time limitations set forth in Section 4 of this Agreement, prepare and file
with the Commission a
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Registration Statement relating to the registration on any appropriate form
under the Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or methods
of distribution thereof.
(C) GENERAL PROVISIONS. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements (including, if required by the Securities Act or any
regulation thereunder, financial statements of the Guarantor) for the
period specified in Section 3 or 4 of this Agreement, as applicable;
upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by
this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its reasonable best efforts to cause such
amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for their intended purpose(s)
as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable, or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 or
such other applicable rule under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A or such
other applicable rule under the Securities Act in a timely manner; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or
of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any
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proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by
reference therein untrue, or that requires the making of any additions
to or changes in the Registration Statement or the Prospectus in order
to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of
the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities
under state or Canadian provincial securities or Blue Sky laws, the
Company and the Guarantor shall use their reasonable reasonable best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers,
each selling Holder named in any Registration Statement, and each of
the underwriter(s), if any, before filing with the Commission, copies
of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s) in connection
with such sale, if any, for a period of at least five business days,
and the Company will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus (including all such documents incorporated by
reference) to which an Initial Purchaser of Transfer Restricted
Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within five
business days after the receipt thereof (such objection to be deemed
timely made upon confirmation of telecopy transmission within such
period). The objection of an Initial Purchaser or underwriter, if any,
shall be deemed to be reasonable if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the Initial Purchasers, each selling
Holder named in any Registration Statement, and to the underwriter(s),
if any, make the Company's representatives available and
representatives of the Guarantor for discussion of such document and
other customary due diligence matters, and include such information in
such document prior to the filing thereof as such selling Holders or
underwriter(s), if any, reasonably may request;
(vi) make available at reasonable times for inspection by the
Initial Purchasers, any managing underwriter participating in any
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such Initial Purchasers or any of the
underwriter(s), all financial and other records, pertinent corporate
documents and properties of the Company and the Guarantor and cause the
Company's and the Guarantor's officers, directors and employees to
supply all information reasonably requested by any such Holder,
underwriter, attorney or accountant in connection with such
Registration Statement subsequent to the filing thereof and prior to
its effectiveness,
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PROVIDED that all information and documents supplied by the Company
shall be kept confidential by the receiving parties unless disclosure
is required by law or regulation, or by any regulatory authority, stock
exchange, court or administrative order;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriter(s), if
any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including financial statements and schedules, all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
and the Guarantor hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each
of the underwriter(s), if any, in connection with the offering and the
sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(xi) enter into, and cause the Guarantor to enter into, such
agreements (including an underwriting agreement), and make, and cause
the Guarantor to make, such representations and warranties, and take
all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by any Initial
Purchaser or by any Holder of Transfer Restricted Securities or
underwriter in connection with any sale or resale pursuant to any Shelf
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration on a Shelf Registration
Statement, the Company and the Guarantor shall:
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(A) furnish to each Initial Purchaser, each selling
Holder and each underwriter, if any, in such substance and
scope as they may reasonably request and as are customarily
made by issuers to underwriters in primary underwritten
offerings, upon the date of the effectiveness of the Shelf
Registration Statement:
(1) a certificate, dated the date of
effectiveness of the Shelf Registration Statement
signed by (y) the President or any Vice President and
(z) a principal financial or accounting officer of
each of the Company and the Guarantor, confirming, as
of the date thereof, the matters set forth in
paragraphs (i) and (ii) of Section 5(e) of the
Purchase Agreement and such other matters as such
parties may reasonably request;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement of
counsel for the Company and the Guarantor, covering
the matters set forth in paragraph (c) of Section 5
of the Purchase Agreement and such other matter as
such parties may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Company, representatives
of the independent public accountants for the
Company, the Initial Purchasers' representatives and
the Initial Purchasers' counsel in connection with
the preparation of such Registration Statement and
the related Prospectus and have considered the
matters required to be stated therein and the
statements contained therein, although such counsel
has not independently verified the accuracy,
completeness or fairness of such statements; and that
such counsel advises that, on the basis of the
foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by
officers and other representatives of the Company and
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated therein or necessary to make the statements
therein not misleading, or that the Prospectus
contained in such Registration Statement as of its
date, contained an untrue statement of a material
fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) a customary comfort letter, dated the
date of effectiveness of the Shelf Registration
Statement, from the Company's independent
accountants, in the customary form and covering
matters of the type
11
customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 5(d) of
the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company or the Guarantor
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the
Company and the Guarantor contemplated in clause (A)(1) above cease to
be true and correct, the Company or the Guarantor shall so advise the
Initial Purchasers and the underwriter(s), if any, and each selling
Holder promptly and, if requested by such Persons, shall confirm such
advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Guarantor to cooperate with,
the selling Holders, the underwriter(s), if any, and their respective
counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may request
and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; PROVIDED,
HOWEVER, that neither the Company nor the Guarantor shall be required
to register or qualify as a foreign corporation where it is not then so
qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any
jurisdiction where it is not then so subject;
(xiii) shall issue, upon the request of any Holder of Initial
Notes covered by the Shelf Registration Statement, Exchange Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Initial Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Notes to
be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Initial
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiv) cooperate with, and cause the Guarantor to cooperate
with, the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing
Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to
be in such denominations and registered in such names as the Holders or
the underwriter(s), if any,
12
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (viii) above, PROVIDED, HOWEVER, that in no event shall the
Company be obligated to file a prospectus in Canada to qualify the
Transfer Restricted Securities for distribution in any province or
territory in Canada;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depositary Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable reasonable
best efforts to cause such Registration Statement to become effective
and approved by such governmental agencies or authorities as may be
necessary to enable the Holders selling Transfer Restricted Securities
to consummate the disposition of such Transfer Restricted Securities;
(xix) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or reasonable best
efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture to be qualified under the Trust
Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with, and cause the Guarantor to cooperate with,
the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be
13
required for such Indenture to be so qualified in accordance with the
terms of the Trust Indenture Act; and to execute, and cause the
Guarantor to execute, and use its reasonable reasonable best efforts to
cause the Trustee to execute, all documents that may be required to
effect such changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so qualified
in a timely manner; and
(xxi) to the extent not publicly available on the Commission's
Electronic Data Gathering, Analysis, and Retrieval system, provide
promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of
the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice; however, no such extension shall be taken into
account in determining whether Additional Interest is due pursuant to Section 5
hereof or the amount of such Additional Interest, it being agreed that the
Company's option to suspend use of a Registration Statement pursuant to this
paragraph shall be treated as a Registration Default for purposes of Section 5.
SECTION 7. REGISTRATION EXPENSES.
(a) All expenses incident to the Company's or the Guarantor's
performance of or compliance with this Agreement will be borne by the Company or
the Guarantor, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by any Initial Purchaser or Holder with the NASD (and,
if applicable, the fees and expenses of any "qualified independent underwriter"
and its counsel that may be required by the rules and regulations of the NASD));
(ii) all fees and expenses of compliance with United States federal securities
and state Blue Sky or securities laws or Canadian provincial securities laws;
(iii) all expenses of printing (including printing certificates for the Exchange
Notes to be issued in the Exchange Offer and printing of Prospectuses),
messenger and delivery services and telephone; (iv) all fees and disbursements
of counsel for the Company, the Guarantor and, subject to Section 7(b) below,
the Holders of Transfer Restricted Securities; and (v) all fees and
disbursements of independent certified public
14
accountants of the Company and the Guarantor (including the expenses of any
special audit and comfort letters required by or incident to such performance).
The Company will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Shearman & Sterling LLP or such other counsel as may be chosen by the Holders of
a majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION.
(a) The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any Holder (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (or any amendment or supplement thereto), or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses are caused by an untrue
statement or omission or alleged untrue statement or omission that is made in
reliance upon and in conformity with information relating to any of the Holders
furnished in writing to the Company by any of the Holders expressly for use
therein; PROVIDED, HOWEVER, the Company and the Guarantor shall not be liable in
any such case to the extent the Company or the Guarantor, as the case may be,
proves that (x) such loss, claim, damage or liability was caused by the delivery
by a Holder of a Prospectus contained in a Registration Statement for which a
stop order had been issued by the Commission in respect of such Registration
Statement or any proceedings for such purposes had been initiated or such a
Registration Statement had been suspended and (y) prior to delivery of such
Prospectus by such Holder, the Holder received written notice from the Company
of such
15
stop order in respect of, or suspension of, such Registration Statement. This
indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company or the Guarantor, such Indemnified Holder (or the Indemnified Holder
controlled by such controlling person) shall promptly notify the Company and the
Guarantor in writing (PROVIDED, that the failure to give such notice shall not
relieve the Company or the Guarantor of their respective obligations pursuant to
this Agreement). Such Indemnified Holder shall have the right to employ its own
counsel in any such action and the fees and expenses of such counsel shall be
paid, as incurred, by the Company and the Guarantor (regardless of whether it is
ultimately determined that an Indemnified Holder is not entitled to
indemnification hereunder). The Company and the Guarantor shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for such Indemnified Holders, which firm shall be
designated by the Holders. The Company shall be liable for any settlement of any
such action or proceeding effected with the Company's prior written consent,
which consent shall not be withheld unreasonably, and the Company agrees to
indemnify and hold harmless any Indemnified Holder from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of the Company. The Company shall not, without
the prior written consent of each Indemnified Holder, settle or compromise or
consent to the entry of judgment in or otherwise seek to terminate any pending
or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any
Indemnified Holder is a party thereto), unless such settlement, compromise,
consent or termination includes an unconditional release of each Indemnified
Holder from all liability arising out of such action, claim, litigation or
proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and the Guarantor and
their respective directors, officers of the Company who sign a Registration
Statement, and any person controlling (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) the Company, the Guarantor and
the respective officers, directors, partners, employees, representatives and
agents of each such person, to the same extent as the foregoing indemnity from
the Company and the Guarantor to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the
Company, the Guarantor or their directors or officers or any such controlling
person in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the
Company and/or the Guarantor and the Company and/or the Guarantor or their
directors or officers or such controlling person shall have the rights and
duties given to each Holder by the preceding paragraph.
(c) If the indemnification provided for in this Section 8 is
unavailable to an indemnified party under Section 8(a) or Section 8(b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities, judgments,
16
actions or expenses referred to therein, then each applicable indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantor, on the
one hand, and the Holders, on the other hand, from the Initial Placement (which
in the case of the Issuer shall be deemed to be equal to the total gross
proceeds from the Initial Placement as set forth on the cover page of the
Offering Memorandum), the amount of Additional Interest which did not become
payable as a result of the filing of the Registration Statement resulting in
such losses, claims, damages, liabilities, judgments actions or expenses, and
such Registration Statement, or if such allocation is not permitted by
applicable law, the relative fault of the Company and the Guarantor on the one
hand, and of the Indemnified Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnified Holder
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Indemnified Holder and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
The Company, the Guarantor and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Holders (and its related Indemnified
Holders) shall be required to contribute, in the aggregate, any amount in excess
of the amount by which the total discount received by such Holder with respect
to the Initial Notes exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(c) are several in proportion to the respective principal amount
of Initial Notes held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A. The Company and the Guarantor each hereby agrees
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any prospective
purchaser of such Transfer Restricted Securities from such Holder or
17
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any Underwritten Registration hereunder unless such Holder (a)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS. The Holders of Transfer
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell such Transfer Restricted Securities in an Underwritten Offering.
In any such Underwritten Offering, the investment banker or investment bankers
and manager or managers that will administer the offering will be selected by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided, that such investment
bankers and managers must be reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS.
(A) REMEDIES. The Company and the Guarantor each hereby agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(B) NO INCONSISTENT AGREEMENTS. The Company will not, and will cause
the Guarantor not to, on or after the date of this Agreement enter into any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Neither the Company nor the Guarantor has entered into any
agreement granting any registration rights with respect to its securities to any
Person. The rights granted to the Holders hereunder do not in any way conflict
with and are not inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(C) ADJUSTMENTS AFFECTING THE NOTES. The Company will not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(D) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered;
18
provided that, with respect to any matter that directly or indirectly affects
the rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser with respect to which such
amendment, qualification, supplement, waiver, consent or departure is to be
effective.
(E) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company or the Guarantor:
Abitibi-Consolidated Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
With a copy to:
Stikeman Elliott LLP
▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP 1285
Avenue of the Americas ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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 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.
19
(F) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; PROVIDED, HOWEVER, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(G) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(H) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(I) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(i) Consent to Jurisdiction. Any legal suit, action or
proceeding arising out of or based upon this Agreement or the
transactions contemplated hereby ("Related Proceedings") may be
instituted in the federal courts of the United States of America or the
courts of the State of New York in each case located in the City of New
York in the State of New York (collectively, the "Specified Courts"),
and each party irrevocably submits to the non-exclusive jurisdiction of
such courts in any such suit, action or proceeding. Service of any
process, summons, notice or document by mail to such party's address
set forth above shall be effective service of process for any suit,
action or other proceeding brought in any such courts. The parties
irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts
and irrevocably and unconditionally waive and agree not to plead or
claim in any such court that any such suit, action or other proceeding
brought in any such courts has been brought in an inconvenient forum.
Each party not located in the United States irrevocably appoints CT
Corporation System, as its agent to receive service of process or other
legal summons for purposes of any such suit, action or proceeding that
may be instituted in the Specified Courts.(ii) Waiver of Immunity. With
respect to any Related Proceeding, each party irrevocably waives, to
the fullest extent permitted by applicable law, all immunity (whether
on the basis of sovereignty or otherwise) from jurisdiction, service of
process, attachment (both before and after judgment) and execution to
which it might otherwise be entitled in the Specified Courts, and with
respect to any proceedings instituted in regard to the enforcement of a
judgment of any such courts (a "Related Judgment"), each party waives
any such immunity in the Specified Courts or any other court of
competent jurisdiction, and will not raise or claim or cause to be
pleaded any such immunity at or in respect of any such Related
Proceeding or Related Judgment, including, without limitation, any
immunity pursuant to the United States Foreign Sovereign Immunities Act
of 1976, as amended. (iii) Waiver of Jury Trial. To the fullest extent
permitted by applicable law, each of the Initial Purchasers, the
Company and the Guarantor irrevocably waives all right to trial by jury
in any action, proceeding or counterclaim (whether based upon contract,
tort or otherwise) relating to or
20
arising out of this Agreement. The provisions of this subsection (iii)
shall survive any termination of this Agreement, in whole or in
part.(iv) Judgment Currency. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder into any
currency other than U.S. dollars, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of
exchange used shall be the rate at which in accordance with normal
banking procedures the Initial Purchasers could purchase U.S. dollars
with such other currency in The City of New York on the business day
preceding that on which final judgment is given. The obligations of the
Company and the Guarantor in respect of any sum due from it to any
Initial Purchaser shall, notwithstanding any judgment in any currency
other than U.S. dollars, not be discharged until the first business
day, following receipt by such Initial Purchaser of any sum adjudged to
be so due in such other currency, on which (and only to the extent
that) such Initial Purchaser may in accordance with normal banking
procedures purchase U.S. dollars with such other currency; if the U.S.
dollars so purchased are less than the sum originally due to such
Initial Purchaser hereunder, each of the Company and the Guarantor
agrees, as a separate obligation and notwithstanding any such judgment,
to indemnify such Initial Purchaser against such loss. If the U.S.
dollars so purchased are greater than the sum originally due to such
Initial Purchaser hereunder, such Initial Purchaser agrees to pay to
the Company and the Guarantor (but without duplication) an amount equal
to the excess of the dollars so purchased over the sum originally due
to such Initial Purchaser hereunder.
(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) ENTIRE AGREEMENT. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ABITIBI-CONSOLIDATED COMPANY OF CANADA
By: /s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
Title: Vice-President and Treasurer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice-President, Corporate
Development and Chief Financial Officer
ABITIBI-CONSOLIDATED INC.
By: /s/ ▇▇▇▇▇ ▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice-President and Treasurer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice-President, Corporate
Development and Chief Financial Officer
The foregoing Registration Rights Agreement is hereby confirmed and
accepted as of the date first above written:
BANC OF AMERICA SECURITIES LLC
CITIGROUP GLOBAL MARKETS INC.
CIBC WORLD MARKETS CORP.
SCOTIA CAPITAL (USA) INC.
NBF SECURITIES (USA) CORP.
RBC DOMINION SECURITIES CORPORATION
ABN AMRO INCORPORATED
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
CREDIT SUISSE FIRST BOSTON LLC
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: Banc of America Securities LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal