EXHIBIT 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of September 17, 1999
among
SUPERVALU INC.
and
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
BANC ONE CAPITAL MARKETS, INC.
DEUTSCHE BANK SECURITIES INC.
WACHOVIA SECURITIES, INC.
as the Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of September 17,
1999 among SUPERVALU INC., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇▇
LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED, ▇▇▇▇▇▇▇, SACHS & CO., ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ INC., U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC., BANC ONE CAPITAL MARKETS, INC.,
DEUTSCHE BANK SECURITIES INC. and WACHOVIA SECURITIES, INC. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated September
14, 1999 by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial
Purchasers of $250,000,000 aggregate principal amount of the Company's 7 5/8%
Notes due 2004 (the "Securities"). 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:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
to time, and the rules and regulations of the SEC promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as amended
from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Closing Time" shall mean September 17, 1999.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company, including any agent thereof; provided,
however, that any such depositary must at all times have an address in the
Borough of Manhattan, The City of New York.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Registrable Securities pursuant to Section 2(a)
hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another
appropriate form) covering the Registrable Securities, and all amendments
and supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"Exchange Securities" shall mean the 7 5/8% Notes due 2004 issued by
the Company under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last
date to which interest has been paid or duly provided for on the Securities
or, if no such interest has been paid or duly provided for, from the
Interest Accrual Date, (ii) provisions relating to an increase in the
stated rate of interest thereon upon the occurrence of a Registration
Default shall be eliminated, (iii) the transfer restrictions and legends
relating to restrictions on ownership and transfer thereof as a result of
the issuance of the Securities without registration under the 1933 Act
shall be eliminated, (iv) the denominations thereof shall be $1,000 and
integral multiples of $1,000) and (v) all of the Exchange Securities will
be represented by one or more global Exchange Securities in book-entry form
unless exchanged for Exchange Securities in definitive certificated form
under the circumstances provided in the Indenture to be offered to Holders
of Registrable Securities in exchange for Registrable Securities pursuant
to the Exchange Offer.
"Holders" shall mean (i) the Initial Purchasers, for so long as they
own any Registrable Securities, and each of their respective successors,
assigns and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and (ii) each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of such Exchange
Securities.
"Indenture" shall mean the Indenture dated as of July 1, 1987, as
amended and supplemented by the First Supplemental Indenture dated as of
August 1, 1990, the Second Supplemental Indenture dated as of October 1,
1992, the Third Supplemental Indenture dated as of September 1, 1995, the
Fourth Supplemental Indenture dated as of August 4, 1999 and the Fifth
Supplemental Indenture dated as of September 17, 1999, each between the
Company and Bankers Trust Company, as trustee, as the same may be further
amended or supplemented from time to time in accordance with the terms
thereof.
"Interest Accrual Date" means September 17, 1999.
"Initial Purchasers" shall have the meaning set forth in the preamble
of this Agreement.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Registrable Securities outstanding, excluding
Exchange Securities referred to in clause (ii) of the definition of
"Holders" above; provided that whenever the consent or approval of Holders
of a specified percentage of Registrable Securities or Exchange Securities
is required hereunder, Registrable Securities and Exchange
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Securities held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the ▇▇▇▇ ▇▇▇) shall be disregarded in determining
whether such consent or approval was given by the Holders of such required
percentage.
"▇▇▇▇▇▇▇ ▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and its successors.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notifying Broker-Dealer" shall have the meaning set forth in Section
3(f).
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(f).
"Person" shall mean an individual, partnership, joint venture, limited
liability company, corporation, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Private Exchange Securities" 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 Securities 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
material incorporated or deemed to be incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Registrable Securities" shall mean the Securities; provided, however,
that any Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities shall have been
declared effective under the 1933 Act and such Securities shall have been
disposed of pursuant to such Registration Statement, (ii) such Securities
shall have been sold to the public pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii) such
Securities shall have ceased to be outstanding, (iv) such Securities have
been exchanged for Exchange Securities which have been registered pursuant
to the Exchange Offer Registration Statement upon consummation of the
Exchange Offer unless, in the case of any Exchange Securities referred to
in this clause (iv), such Exchange Securities are held by Participating
Broker-Dealers or otherwise are not freely tradable without any limitations
or restrictions under the 1933 Act (in which case such Exchange Securities
will be deemed to be Registrable Securities until such time as such
Exchange Securities are sold to a purchaser in whose hands such Exchange
Securities are freely tradeable without any limitations or restrictions
under the ▇▇▇▇ ▇▇▇) or (v) such Securities have been exchanged for Private
Exchange Securities pursuant to the Registration Rights Agreement (in which
case such Private Exchange Securities will be deemed to be Registrable
Securities until
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such time as such Private Exchange Securities are sold to a purchaser in
whose hands such Private Exchange Securities are freely tradeable without
any limitation or restrictions under the 1933 Act).
"Registration Default" shall have the meaning set forth in Section
2(e).
"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 SEC, stock exchange or NASD registration and
filing fees, (ii) all fees and expenses incurred in connection with
compliance with state or other securities or blue sky laws and compliance
with the rules of the NASD (including reasonable fees and disbursements of
counsel for any underwriters or Holders in connection with qualification of
any of the Exchange Securities or Registrable Securities under state or
other securities or blue sky laws and any filing with and review by the
NASD), (iii) all expenses of any Persons in preparing, printing and
distributing any Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities sales
agreements, certificates representing the Securities or Exchange Securities
and other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) all fees and expenses incurred
in connection with the listing, if any, of any of the Securities, Private
Exchange Securities (if any) or Exchange Securities on any securities
exchange or exchanges or on any quotation system, (vi) all fees and
disbursements relating to the qualification of the Indenture under
applicable securities laws, (vii) the fees and disbursements of counsel for
the Company and the fees and expenses of independent public accountants for
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 special audits or "cold comfort" letters
required by or incident to such performance and compliance, (viii) the fees
and expenses of a "qualified independent underwriter" as defined by Conduct
Rule 2720 of the NASD (if required by the NASD rules) and the fees and
disbursements of its counsel, (ix) the fees and expenses of the Trustee,
any registrar, any depositary, any paying agent, any escrow agent or any
custodian, in each case including fees and disbursements of their
respective counsel, and (x) in the case of an underwritten offering, any
fees and disbursements of the underwriters customarily paid by issuers or
sellers of securities and the fees and expenses of any special experts
retained by the Company in connection with any Registration Statement but
excluding (except as otherwise provided herein) fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company relating to any offering of the Exchange Securities or Registrable
Securities 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
material incorporated or deemed to be incorporated by reference therein.
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"SEC" shall mean the Securities and Exchange Commission or any
successor thereto.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities or Private
Exchange Securities (if any), as the case may be, on an appropriate form
under Rule 415 under the 1933 Act, or any similar rule that may be adopted
by the SEC, 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 material
incorporated or deemed to be 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 SEC promulgated thereunder.
"Trustee" shall mean the trustee with respect to the Securities, the
Private Exchange Securities (if any) and the Exchange Securities under the
Indenture.
For purposes of this Agreement, (i) all references in this Agreement to any
Registration Statement, preliminary prospectus or Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the SEC pursuant to its Electronic Data Gathering, Analysis and Retrieval
system; (ii) all references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
any Registration Statement, preliminary prospectus or Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
or deemed to be incorporated by reference in such Registration Statement,
preliminary prospectus or Prospectus, as the case may be; (iii) all references
in this Agreement to amendments or supplements to any Registration Statement,
preliminary prospectus or Prospectus shall be deemed to mean and include the
filing of any document under the 1934 Act which is incorporated or deemed to be
incorporated by reference in such Registration Statement, preliminary prospectus
or Prospectus, as the case may be; (iv) all references in this Agreement to Rule
144, Rule 144A, Rule 405 or Rule 415 under the 1933 Act, and all references to
any sections or subsections thereof or terms defined therein, shall in each case
include any successor provisions thereto; and (v) all references in this
Agreement to days (but not to business days) mean calendar days.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. The Company shall (A) file with the SEC on
or prior to the 135th day after the Closing Time an Exchange Offer Registration
Statement covering the offer by the Company to the Holders to exchange all of
the Registrable Securities for a like aggregate principal amount of Exchange
Securities, (B) use its reasonable best efforts to cause such Exchange Offer
Registration Statement to be declared effective by the SEC no later than the
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180th day after the Closing Time, (C) use its reasonable best efforts to cause
such Registration Statement to remain effective until the closing of the
Exchange Offer and (D) use its reasonable best efforts to consummate the
Exchange Offer no later than 45 days after the effective date of the Exchange
Offer Registration Statement. Upon the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Exchange Offer,
it being the objective of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Securities for Exchange Securities (assuming
that such Holder is not an affiliate of the Company within the meaning of Rule
405 under the 1933 Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements or understandings with any
Person to participate in the Exchange Offer for the purpose of distributing such
Exchange Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act or under the
securities or blue sky laws of the states of the United States.
In connection with the Exchange Offer, the Company shall:
(i) promptly 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;
(ii) keep the Exchange Offer open for not less than 20 business days
(or longer if required by applicable law) after the date notice thereof is
mailed to the Holders and, during the Exchange Offer, offer to all Holders
who are legally eligible to participate in the Exchange Offer the
opportunity to exchange their Registrable Securities for Exchange
Securities;
(iii) use the services of a depositary with an address in the Borough
of Manhattan, The City of New York for the Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable Securities at any
time prior to the close of business, New York City time, on the last
business day on which the Exchange Offer shall remain open, by sending to
the institution specified in the Prospectus or the related letter of
transmittal or related documents a telegram, telex, facsimile transmission
or letter setting forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement that such
Holder is withdrawing its election to have such Securities exchanged; and
(v) otherwise comply in all material respects with all applicable laws
relating to the Exchange Offer.
If, at or prior to the consummation of the Exchange Offer, any of the
Initial Purchasers holds any Securities acquired by it and having the status of
an unsold allotment in the initial distribution, the Company shall, upon the
request of any such Initial Purchaser, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue and deliver to such Initial
Purchaser in exchange for such Securities a like principal amount of debt
securities of the Company that are identical (except that such debt securities
shall be subject to transfer restrictions and shall bear a legend relating to
restrictions on ownership and transfer as a result of
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the issuance thereof without registration under the 1933 Act, shall provide for
the payment of Additional Interest and shall be issuable in denominations of
$100,000 in integral multiples of $1,000 in excess thereof) to the Exchange
Securities (the "Private Exchange Securities"). The Company shall use its
reasonable best effort to have the Private Exchange Securities bear the same
CUSIP number as the Exchange Securities and, if unable to do so, the Company
will, at such time as any Private Exchange Security ceases to be a "restricted
security" within the meaning of Rule 144 under the 1933 Act, permit any such
Private Exchange Security to be exchanged for a like principal amount of
Exchange Securities. The Company shall not have any liability under this
Agreement solely as a result of any such Private Exchange Securities not bearing
the same CUSIP number as the Exchange Securities.
The Exchange Securities and the Private Exchange Securities (if any) shall
be issued under the Indenture, which shall be qualified under the TIA. The
Indenture shall provide that the Exchange Securities, the Private Exchange
Securities (if any) and the Securities shall vote and consent together on all
matters as a single class and shall constitute a single series of debt
securities issued under the Indenture.
As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Registrable Securities duly tendered and
not validly withdrawn pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by the
Company; and
(iii) cause the Trustee promptly to authenticate and deliver Exchange
Securities to each Holder of Registrable Securities so accepted for
exchange equal in principal amount to the principal amount of the
Registrable Securities of such Holder so accepted for exchange.
Interest on each Exchange Security and such Private Exchange Security (if
any) will accrue from the last date on which interest was paid or duly provided
for on the Securities surrendered in exchange therefor or, if no interest has
been paid or duly provided for on such Securities, from the Interest Accrual
Date. The Exchange Offer shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any exchange by a Holder, does not
violate any applicable law or any applicable interpretation of the staff of the
SEC, (ii) that no action or proceeding shall have been instituted or threatened
in any court or by or before any governmental agency with respect to the
Exchange Offer which, in the Company's judgment, would reasonably be expected to
impair the ability of the Company to proceed with the Exchange Offer, and (iii)
that the Holders tender the Registrable Securities to the Company in accordance
with the Exchange Offer. Each Holder of Registrable Securities (other than
Participating Broker-Dealers) who wishes to exchange such Registrable Securities
for Exchange Securities in the Exchange Offer will be required to represent that
(i) it is not an affiliate (as defined in Rule 405 under the ▇▇▇▇ ▇▇▇) of the
Company, (ii) any Exchange Securities to be received by it will be acquired in
the ordinary course of business and (iii) it has no arrangement
7
with any Person to participate in the distribution (within the meaning of the
▇▇▇▇ ▇▇▇) of the Exchange Securities, and shall be required to make such other
representations as may be reasonably necessary under applicable SEC rules,
regulations or interpretations to render the use of Form S-4 or another
appropriate form under the 1933 Act available. To the extent permitted by law,
the Company shall inform the Initial Purchasers of the names and addresses of
the Holders of Securities to whom the Exchange Offer is made and, to the extent
such information is available to the Company, the names and addresses of the
beneficial owners of such Securities, and the Initial Purchasers shall have the
right to contact such Holders and beneficial owners and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.
(b) Shelf Registration. (i) If, because of any change in law or applicable
interpretations thereof by the staff of the SEC, the Company is not permitted to
effect the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if for
any other reason (A) the Exchange Offer Registration Statement is not declared
effective within 180 days following the Closing Time 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 180-day period or if the
Exchange Offer shall be consummated after such 45-day period, then the Company's
obligations under this clause (ii) arising from the failure of the Exchange
Offer Registration Statement to be declared effective within such 180-day period
or the failure of the Exchange Offer to be consummated within such 45-day
period, respectively, shall terminate), or (iii) if any Holder (other than an
Initial Purchaser holding Securities acquired directly from the Company) is not
eligible to participate in the Exchange Offer or elects to participate in the
Exchange Offer but does not receive Exchange Securities which are freely
tradeable without any limitations or restrictions under the 1933 Act or (iv)
upon the request of any of the Initial Purchasers within 90 days following the
consummation of the Exchange Offer (provided that, in the case of this clause
(iv), such Initial Purchaser shall hold Registrable Securities (including,
without limitation, Private Exchange Securities) that it acquired directly from
the Company), the Company shall, at its cost:
(A) as promptly as practicable, but no later than (a) the 180th day
after the Closing Time or (b) the 60th day after any such filing obligation
arises, whichever is later, file with the SEC a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by
the Holders from time to time in accordance with the methods of
distribution elected by the Majority Holders of such Registrable Securities
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 SEC as promptly as practicable,
but in no event later than the 225th day after the Closing Time (or, in the
case of a request by any of the Initial Purchasers pursuant to clause (iv)
above, within 30 days after such request). 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 SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a combined
Registration Statement with the Exchange Offer Registration Statement) with
respect to offers and sales of Registrable Securities held by such Holder
or such Initial Purchaser, as applicable;
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(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 latest date on which any Securities are
originally issued by the Company (subject to extension pursuant to the last
paragraph of Section 3) or, if earlier, when all of the Registrable
Securities 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
Securities; and
(D) notwithstanding any other provisions hereof, use its best efforts
to ensure that (i) any Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and any supplements
thereto comply in all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any Shelf Registration
Statement and any amendment or supplement to such Prospectus does not
include an untrue statement of a material fact or 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; provided,
however, clauses (ii) and (iii) shall not apply to any statement in or
omission from a Shelf Registration Statement or a Prospectus made in
reliance upon and conformity with information relating to any Initial
Purchaser, Holder, Participating Broker-Dealer or underwriter of
Registrable Securities furnished to the Company in writing by such Initial
Purchaser, Holder, Participating Broker-Dealer or underwriter,
respectively, expressly for use in such Shelf Registration Statement or
Prospectus.
The Company shall not permit any securities other than Registrable
Securities to be included in any Shelf Registration Statement without the prior
written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, which consent shall not be unreasonably
withheld. The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the Holders and otherwise as required by
Section 3(b) below, to use its reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) and 2(b) and, in the case of any
Shelf Registration Statement, will reimburse the Holders or the Initial
Purchasers for the reasonable fees and disbursements of one counsel (in addition
to any local counsel) designated in writing by the Majority Holders (or, if a
Shelf Registration Statement if filed solely pursuant to clause (iv) of the
first paragraph of Section 2(b), designated by the Initial Purchasers) to act as
counsel for the Holders of the Registrable Securities in connection therewith.
Each Holder shall pay all fees and disbursements of its counsel other than as
set forth in the preceding sentence or in the definition of Registration
Expenses and all underwriting discounts and commissions and transfer taxes, if
9
any, relating to the sale or disposition of such Holder's Registrable Securities
pursuant to a Shelf Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used its reasonable best
efforts to cause the Exchange Offer Registration Statement or any Shelf
Registration Statement, as the case may be, to become, or to remain,
effective during the requisite periods set forth herein if the Company
voluntarily takes any action that could reasonably be expected to result in
any such Registration Statement not being declared effective or remaining
effective or in the Holders of Registrable Securities (including, under the
circumstances contemplated by Section 3(f) hereof, Exchange Securities)
covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless (A) such action is
required by applicable law or (B) such action is taken by the Company in
good faith and for valid business reasons (but not including avoidance of
the Company's obligations hereunder), including the acquisition or
divestiture of assets or a material corporate transaction or event so long
as the Company promptly complies with the notification requirements of
Section 3(k) hereof, if applicable. Nothing in this paragraph shall prevent
the accrual of Additional Interest on any Securities or Exchange
Securities.
(ii) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof
shall not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities pursuant to a
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement shall be deemed not to have been
effective during the period of such interference until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
(iii) During any 365-day period, the Company may, by notice as
described in Section 3(e), suspend the availability of a Shelf Registration
Statement (and, if the Exchange Offer Registration Statement is being used
in connection with the resale of Exchange Securities by Participating
Broker-Dealers as contemplated by Section 3(f), the Exchange Offer
Registration Statement) and the use of the related Prospectus for up to two
periods of up to 45 consecutive days each (except for the consecutive
45-day period immediately prior to final maturity of the Securities), but
no more than an aggregate of 90 days during any 365-day period, upon the
happening of any event or the discovery of any fact referred to in Section
3(e)(vi), but subject to compliance by the Company with its obligations
under the last paragraph of Section 3.
(e) Increase in Interest Rate. In the event that:
(i) the Exchange Offer Registration Statement is not filed with the
SEC on or prior to the 135th day following the Closing Time, or
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(ii) the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the 180th day following the Closing
Time, 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, a Shelf Registration Statement is not filed with the
SEC on or prior to (A) the 180th day following the Closing Time or (B) the
60th day after the filing obligation arises, whichever is later, or
(v) if required, a Shelf Registration Statement is not declared
effective on or prior to the 225th day following the Closing Time (or, if a
Shelf Registration Statement is required to be filed upon the request of
any Initial Purchaser, within 30 days after such request), or
(vi) a Shelf Registration Statement is declared effective by the SEC
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 Securities for any reason
and either (A) the aggregate number of days in any consecutive 365-day
period for which the Shelf Registration Statement or such Prospectus shall
not be effective or usable exceeds 90 days, (B) the Shelf 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 Shelf Registration Statement or such Prospectus shall not be
effective or usable for a period of more than 45 consecutive days, or
(vii) the Exchange Offer Registration Statement is declared effective
by the SEC but, if the Exchange Offer Registration Statement is being used
in connection with the resale of Exchange Securities as contemplated by
Section 3(f)(B) of this Agreement, 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 Securities for any reason during the
180-day period referred to in Section 3(f)(B) of this Agreement (as such
period may be extended pursuant to the last paragraph of Section 3 of this
Agreement) 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 90 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 the Prospectus shall not be effective or usable for a period
of more than 45 consecutive days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate borne
by the Registrable Securities shall be increased ("Additional Interest") by
one-quarter of one percent (0.25%) per annum immediately following such 135-day
period in the case of clause (i) above, immediately following such 180-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 180-day
period or 60-day period,
11
whichever ends later, in the case of clause (iv) above, immediately following
any such 225-day period or 30-day period, whichever ends first, in the case of
clause (v) above, immediately following the 90th 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 45th consecutive day, whichever occurs
first, that a Shelf Registration Statement shall not be effective or a Shelf
Registration Statement or the Prospectus included therein shall not be usable as
contemplated by clause (vi) above, or immediately following the 90th 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 45th consecutive day,
whichever occurs first, that the Exchange Offer Registration Statement shall not
be effective or the 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 annual interest rate may in no event exceed one-half of one
percent (0.50%) per annum. Upon the filing of the Exchange Offer Registration
Statement after the 135-day period described in clause (i) above, the
effectiveness of the Exchange Offer Registration Statement after the 180-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 180-day period or 60-day period day, as the
case may be, described in clause (iv) above, the effectiveness of a Shelf
Registration Statement after the 225-day period or 30-day period, as the case
may be, described in clause (v) above, or the Shelf Registration Statement once
again being effective or the Shelf Registration Statement and the Prospectus
included therein becoming usable in connection with resales of Registrable
Securities, as the case may be, in the case of clause (vi) above, or the
Exchange Offer Registration Statement once again becoming effective or the
Exchange Offer Registration Statement and the Prospectus included therein
becoming usable in connection with resales of Exchange Securities, as the case
may be, in the case of clause (vii) thereof, the interest rate borne by the
Securities from the date of such filing, effectiveness, consummation or
resumption of effectiveness or useability, as the case may be, shall be reduced
to the original interest rate 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 paragraph; 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.
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 Securities for Exchange Securities in the Exchange
Offer will not be entitled to receive any Additional Interest. For purposes of
clarity, it is hereby acknowledged and agreed that, under current
interpretations of law by the SEC, Initial Purchasers holding unsold allotments
of Securities acquired from the Company are not eligible to participate in the
Exchange Offer.
(f) Specific Enforcement. Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company acknowledges that any failure by
the Company to comply with its obligations under Sections 2(a) and 2(b) 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 will 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
12
Participating Broker-Dealer may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 2(a) and 2(b).
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:
(a) prepare and file with the SEC a Registration Statement or, if
required, Registration Statements, within the time periods specified in
Section 2, on the appropriate form under the 1933 Act, which form (i) shall
be selected by the Company, (ii) shall, in the case of a Shelf Registration
Statement, be available for the sale of the Registrable Securities by the
selling Holders thereof and (iii) shall comply as to form in all material
respects with the requirements of the applicable form and include or
incorporate by reference all financial statements required by the SEC to be
filed therewith, and use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 under the 1933 Act; and comply with the provisions of the 1933 Act and
the 1934 Act with respect to the disposition of all Securities covered by
each Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least ten business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is
being filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method elected by the
Majority Holders; (ii) furnish to each Holder of Registrable Securities, to
counsel for the Initial Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable Securities, 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, counsel or underwriter may reasonably
request, including financial statements and schedules and, if such Holder,
counsel or underwriter so requests, all exhibits (including those
incorporated by reference) in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject to the
penultimate paragraph of this Section 3, the Company hereby consents to the
use of the Prospectus, including each preliminary Prospectus, or any
amendment or supplement thereto by each of the Holders and underwriters of
Registrable Securities in connection with the offering and sale of the
Registrable Securities covered by any Prospectus or any amendment or
supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as
13
any Holder of Registrable Securities covered by a Registration Statement
and each underwriter of an underwritten offering of Registrable Securities
shall reasonably request, to cooperate with the Holders and the
underwriters of any Registrable Securities in connection with any filings
required to be made with the NASD, to keep each such registration or
qualification effective during the period such Registration Statement is
required to be effective and do any and all other acts and things which may
be reasonably necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
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) or (ii) take any action which would
subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities and counsel for such Holders promptly and, if
requested by such Holder or counsel, confirm such advice in writing
promptly (i) when a Registration Statement has become effective and when
any post-effective amendments and supplements thereto become effective,
(ii) of any request by the SEC or any state securities authority for
post-effective amendments or supplements to a Registration Statement or
Prospectus or for additional information after a Registration Statement has
become effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) if
between the effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any, relating to
such offering cease to be true and correct, (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceeding for such purpose, (vi) of
the happening of any event or the discovery of any facts during the period
a Shelf Registration Statement is effective which is contemplated in
Section 2(d)(i)(A) or 2(d)(i)(B) or which makes any statement made in such
Shelf Registration Statement or the related Prospectus untrue in any
material respect or which constitutes an omission to state a material fact
in such Shelf Registration Statement or Prospectus and (vii) of any
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate. Without limitation to any
other provisions of this Agreement, the Company agrees that this Section
3(e) shall also be applicable, mutatis mutandis, with respect to the
Exchange Offer Registration Statement and the Prospectus included therein
to the extent that such Prospectus is being used by Participating
Broker-Dealers as contemplated by Section 3(f);
(f) (A) in the case of an Exchange Offer, (i) include in the Exchange
Offer Registration Statement (A) a "Plan of Distribution" section (which
section shall be reasonably acceptable to ▇▇▇▇▇▇▇ ▇▇▇▇▇) covering the use
of the Prospectus included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable Securities for Exchange
Securities for the resale of such Exchange Securities and (B) a statement
to the effect that any such broker-dealers who wish to use the related
14
Prospectus in connection with the resale of Exchange Securities acquired as
a result of market-making or other trading activities will be required to
notify the Company to that effect, together with instructions for giving
such notice (which instructions shall include a provision for giving such
notice by checking a box or making another appropriate notation on the
related letter of transmittal) (each such broker-dealer who gives notice to
the Company as aforesaid being hereinafter called a "Notifying
Broker-Dealer"), (ii) furnish to each Notifying Broker-Dealer who desires
to participate in the Exchange Offer, 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 broker-dealer may reasonably request, (iii) include in the
Exchange Offer Registration Statement a statement that any broker-dealer
who holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities (a "Participating
Broker-Dealer"), and who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer, may be a statutory underwriter
and must deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities, (iv) subject to the
penultimate paragraph of this Section 3, 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 Notifying
Broker-Dealer in connection with the sale or transfer of Exchange
Securities, and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to participate
in the Exchange Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution
of Exchange Securities. If the undersigned is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Registrable
Securities, it represents that the Registrable Securities to be exchanged
for Exchange Securities were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities pursuant to the Exchange Offer;
however, by so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act;"
(B) to the extent any Notifying Broker-Dealer participates in the
Exchange Offer, (i) the Company shall use its reasonable best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement for
a period of 180 days (subject to extension pursuant to the last paragraph
of this Section 3) following the last date on which exchanges are accepted
pursuant to the Exchange Offer, and (ii) the Company will comply, insofar
as relates to the Exchange Offer Registration Statement, the Prospectus
included therein and the offering and sale of Exchange Securities pursuant
thereto, with its obligations under Section 2(b)(D), the last paragraph of
Section 2(b), Section 3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(o) and 3(p),
and the last two paragraphs of this Section 3 as if all references therein
to a Shelf Registration Statement, the Prospectus included therein and the
Holders of Registrable Securities referred, mutatis mutandis, to the
Exchange Offer Registration Statement, the Prospectus included therein and
the applicable Notifying Broker-Dealers and, for purposes of this Section
3(f), all references in any such
15
paragraphs or sections to the "Majority Holders" shall be deemed to mean,
solely insofar as relates to this Section 3(f), the Notifying
Broker-Dealers who are the Holders of the majority in aggregate principal
amount of the Exchange Securities which are Registrable Securities; and
(C) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) or 3(k) hereof, or take any other
action as a result of this Section 3(f), for a period exceeding 180 days
(subject to extension pursuant to the last paragraph of this Section 3)
after the last date on which exchanges are accepted pursuant to the
Exchange Offer and Notifying Broker-Dealers shall not be authorized by the
Company to, and shall not, deliver such Prospectus after such period in
connection with resales contemplated by this Section 3;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities and counsel for any
underwriters of Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements to a
Registration Statement or Prospectus or for additional information;
(h) use its reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and provide immediate notice to each Holder of the withdrawal
of any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendments thereto (without
documents incorporated or deemed to be incorporated therein by reference or
exhibits thereto, unless requested);
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and cause such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and in a form eligible for deposit with the Depositary and
registered in such names as the selling Holders or the underwriters, if
any, may reasonably request in writing at least one business day prior to
the closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts as contemplated by Section 3(e)(vi)
hereof, use its best efforts to prepare a supplement or post-effective
amendment to a Registration Statement or the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not contain
at the time of such delivery any untrue statement of a material fact or
omit 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. The Company agrees to notify each Holder to
16
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. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to furnish each
Holder such number of copies of the Prospectus, as amended or supplemented,
as such Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed or
word-processed certificates for the Exchange Securities or Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;
(m) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes, if any, to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of the
TIA and (iii) execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such
changes, if any, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, the holders of a majority in
principal amount of the Registrable Securities registered pursuant to such
Shelf Registration Statement shall have the right to direct the Company to
effect not more than one underwritten registration and, in connection with
such underwritten registration, the Company shall enter into agreements
(including underwriting agreements or similar agreements) and take all
other customary and appropriate actions (including those reasonably
requested by the holders of a majority in principal amount of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, in a
manner that is reasonable and customary:
(i) make such representations and warranties to the Holders of
such Registrable Securities and the underwriters, in form, substance
and scope as are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably requested by such
Holders and underwriters;
(ii) obtain opinions of counsel to the Company (which counsel and
opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, and the Holders of a
majority in principal amount of the Registrable Securities being sold)
addressed to each selling Holder and the underwriters, covering the
matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
17
(iii) obtain "cold comfort" letters and updates thereof with
respect to such Shelf Registration Statement and the Prospectus
included therein, all amendments and supplements thereto and all
documents incorporated or deemed to be incorporated by referenced
therein from the Company's independent certified public accountants
and from the independent certified public accountants for any other
Person or any business or assets whose financial statements are
included or incorporated by reference in the Shelf Registration
Statement, each addressed to the underwriters, and use reasonable best
efforts to have such letters addressed to the selling Holders of
Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with similar underwritten
offerings and such letters to be delivered at the time of the pricing
of such underwritten registration with an update to such letter to be
delivered at the time of closing of such underwritten registration;
(iv) if an underwriting agreement or other similar agreement is
entered into, cause the same to set forth indemnification and
contributions provisions and procedures substantially equivalent to
the indemnification and contributions provisions and procedures set
forth in Section 5 hereof with respect to the underwriters and all
other parties to be indemnified pursuant to Section 5 hereof or such
other indemnification and contributions as shall be satisfactory to
the Company, the applicable underwriters and the Holders of the
majority in principal amount of the Registrable Securities being sold;
and
(v) deliver such other documents and certificates as may be
reasonably requested and as are customarily delivered in similar
offerings.
The documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be
delivered at the closing under any underwriting or similar agreement as and
to the extent required thereunder. In the case of any such underwritten
offering, the Company shall provide written notice to the Holders of all
Registrable Securities of such underwritten offering at least 30 days prior
to the filing of a prospectus supplement for such underwritten offering.
Such notice shall (x) offer each such Holder the right to participate in
such underwritten offering, (y) specify a date, which shall be no earlier
than 15 days following the date of such notice, by which such Holder must
inform the Company of its intent to participate in such underwritten
offering and (z) include the instructions such Holder must follow in order
to participate in such underwritten offering;
(o) in the case of a Shelf Registration, make available for inspection
by representatives of the Holders of the Registrable Securities and any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such
Holders or underwriters, all financial statements and other records,
documents and properties of the Company reasonably requested by any such
Persons, and cause the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested
by any such Persons in connection with a Shelf Registration Statement;
18
(p) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such documents to the Initial Purchasers, and make such changes in any such
documents prior to the filing thereof as the Initial Purchasers or their
counsel may reasonably request; (ii) in the case of a Shelf Registration, a
reasonable time prior to filing any Shelf Registration Statement, any
Prospectus forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such document to the Holders of Registrable Securities, to the Initial
Purchasers, to the underwriter or underwriters, of an underwritten offering
of Registrable Securities, and to counsel for any such Holders, Initial
Purchasers or underwriters, and make such changes in any such document
prior to the filing thereof as the Holders of Registrable Securities, the
Initial Purchasers, any such underwriter or underwriters or any of their
respective counsel may reasonably request; and (iii) cause the
representatives of the Company to be available for discussion of such
documents as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders or any
underwriter, and shall not at any time make any filing of any such document
of which such Holders, the Initial Purchasers on behalf of such Holders,
their counsel or any underwriter shall not have previously been advised and
furnished a copy or to which such Holders, the Initial Purchasers on behalf
of such Holders, their counsel or any underwriter shall reasonably object
within a reasonable time period;
(q) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange on which similar debt securities issued by the Company are then
listed if requested by the Majority Holders or by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Securities to be rated with the
appropriate rating agencies, if so requested by the Majority Holders of
Registrable Securities or by the underwriter or underwriters of an
underwritten offering, unless the Registrable Securities are already so
rated;
(s) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and, with respect to each
Registration Statement and each post-effective amendment, if any, thereto
and each filing by the Company of an Annual Report on Form 10-K, make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering at least twelve months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder; and
(t) 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 and its counsel.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of Registrable Securities to furnish to the Company such information
regarding such Holder and the proposed distribution by
19
such Holder of such Registrable Securities as the Company may from time to time
reasonably request in writing and require such Holder to agree in writing to be
bound by all provisions of this Agreement applicable to such Holder.
In the case of a Shelf Registration Statement, each Holder agrees and, in
the event that any Participating Broker-Dealer is using the Prospectus included
in the Exchange Offer Registration Statement in connection with the sale of
Exchange Securities pursuant to Section 3(f), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts of the kind described in
Section 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof, such Holder or
Participating Broker-Dealer, as the case may be, will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement until
receipt by such Holder or Participating Broker-Dealer, as the case may be, of
(i) the copies of the supplemented or amended Prospectus contemplated by Section
3(k) hereof or (ii) written notice from the Company that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required. If so directed
by the Company, such Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Company (at the Company's expense) all copies in its
possession, other than permanent file copies then in its possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. Nothing in this paragraph shall prevent the accrual of
Additional Interest on any Securities or Exchange Securities.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall be deemed to have used its reasonable best efforts to keep the
Shelf Registration Statement or, in the case of Section 3(f), the Exchange Offer
Registration Statement, as the case may be, effective during such period of
suspension; provided that (i) such period of suspension shall not exceed the
time periods provided in Section 2(d)(iii) hereof and (ii) the Company shall use
its reasonable best efforts to file and have declared effective (if an
amendment) as soon as practicable thereafter an amendment or supplement to the
Shelf Registration Statement or the Exchange Offer Registration Statement or
both, as the case may be, or the Prospectus included therein and shall extend
the period during which the Shelf Registration Statement or the Exchange Offer
Registration Statement or both, as the case may be, shall be maintained
effective pursuant to this Agreement (and, if applicable, the period during
which Participating Broker-Dealers may use the Prospectus included in the
Exchange Offer Registration Statement pursuant to Section 3(f) hereof) by the
number of days during the period from and including the date of the giving of
such notice to and including the earlier of the date when the Holders or
Participating Broker-Dealers, respectively, shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions and the
effective date of written notice from the Company to the Holders or
Participating Broker-Dealers, respectively, that the Shelf Registration
Statement or the Exchange Offer Registration Statement, respectively, are once
again effective or that no supplement or amendment is required.
4. Underwritten Registrations. If any of the Registrable Securities covered
by any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Majority
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Holders of such Registrable Securities included in such offering and shall be
reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable 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 questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Initial
Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who
participates in an offering of Registrable Securities (each, an "Underwriter")
and each Person, if any, who controls any Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter within the meaning of either Section
15 of the 1933 Act or Section 20 of the 1934 Act, 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) pursuant to which Exchange Securities or
Registrable Securities were registered under the 1933 Act or any omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus or Prospectus (or any
amendment or supplement thereto) or any omission or alleged omission
therefrom of a material fact necessary in order 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; provided that (subject to Section
5(d) below) any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever, as incurred (including,
subject to Section 5(c) below, the fees and disbursements of counsel chosen
by any indemnified party), 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) above;
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provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter with
respect to such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, as the case may be, expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto).
(b) Each Holder, severally but not jointly, agrees to indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
who signed the Registration Statement, each Initial Purchaser, each
Participating Broker-Dealer, each Underwriter and each other selling Holder and
each Person, if any, who controls the Company, any Initial Purchaser, any
Underwriter, any Participating Broker-Dealer or any other selling Holder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in reliance
upon and in conformity with written information with respect to such Holder
furnished to the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or 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 Securities pursuant to such
Shelf 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 so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. Counsel to the respective
indemnified parties shall be selected as follows: (i) counsel to the Initial
Purchasers and all Persons, if any, who control any Initial Purchasers within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇; (ii) counsel to the Company, its directors, each of
its officers who signed the Registration Statement and all Persons, if any, who
control the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall be selected by the Company; (iii) counsel to the
Holders (other than any Initial Purchasers or Participating Broker-Dealers) and
all Persons, if any, who control any Holders (other than any Initial Purchasers
or Participating Broker-Dealers) within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall be selected by the Holders who held or
hold, as the case may be, a majority in aggregate principal amount of the
Registrable Securities held by all such Holders; (iv) counsel to the
Underwriters of any particular offering of Registrable Securities and all
Persons, if any, who control any such Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act shall be selected by such
Underwriters; and (v) counsel to the Participating Broker-Dealers (other than
any Initial Purchasers) and all Persons, if any, who control any such
Participating Broker-Dealer within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall be selected by the Participating Broker-Dealers
who held
22
or hold, as the case may be, a majority in aggregate principal amount of the
Exchange Securities referred to in Section 3(f) hereof held by all such
Participating Broker-Dealers. 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 party or parties be liable for (A) the fees and expenses of more
than one counsel (in addition to any local counsel) separate from the
indemnifying parties' own counsel for all Initial Purchasers and all other
Persons referred to in clause (i) of this paragraph, (B) the fees and expenses
of more than one counsel (in addition to any local counsel) separate from the
indemnifying parties' own counsel for the Company and all other Persons referred
to in clause (ii) of this paragraph, (C) the fees and expenses of more than one
counsel (in addition to any local counsel) separate from the indemnifying
parties' own counsel for all Holders (other than any Initial Purchasers or
Participating Broker-Dealers) and all other Persons referred to in clause (iii)
of this paragraph, (D) the fees and expenses of more than one counsel (in
addition to any local counsel) separate from the indemnifying parties' own
counsel for all Underwriters of any particular offering of Registrable
Securities and all other Persons referred to in clause (iv) of this paragraph,
and (E) the fees and expenses of more than counsel (in addition to any local
counsel) separate from the indemnifying parties' own counsel for all
Participating Broker-Dealers (other than any Initial Purchasers) and all other
Persons referred to in clause (v) of this paragraph, in each case 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. 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 5 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional 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 requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 5(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.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
shall not be liable for any settlement of the nature contemplated by Section
5(a)(ii) effected without its written consent if such indemnifying party (x)
reimburses such indemnified party in accordance with such request to the extent
that the indemnifying party in its judgment considers such request to be
reasonable and (y) provides written notice to the indemnified party stating the
reason it deems the unpaid balance unreasonable, in each case no
23
later than 45 days after receipt by such indemnifying party of the aforesaid
request from the indemnified party.
(e) If the indemnification provided for in this Section 5 is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or parties on the one hand and of the
indemnified party or parties on the other hand in connection with the statements
or omissions that resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations. 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 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.
(f) The Company, the Holders, and the Initial Purchasers agree that it
would not be just or equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Initial Purchasers were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in paragraph (e)
above. The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 5 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.
Notwithstanding the provisions of this Section 5, no Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
Registrable Securities sold by it were offered exceeds the amount of any damages
that such Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter
has otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each Person, if any, who controls an
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have
the same rights to contribution as such Initial Purchaser, Holder, Participating
Broker-Dealer or Underwriter, as the case may be, and each director of the
Company, each officer of the Company who signed the Registrations Statement and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
24
The respective obligations of the Initial Purchasers, Holders, Participating
Broker-Dealers and Underwriters to contribute pursuant to this Section 5 are
several in proportion to the principal amount of Securities purchased by them
and not joint.
The indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Initial
Purchaser, Holder, Participating Broker-Dealer or Underwriter or any Person
controlling any Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter, or by or on behalf of the Company, its officers or directors or any
Person controlling the Company, (iii) acceptance of any of the Exchange
Securities and (iv) any sale of Registrable Securities or Exchange Securities
pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will file all reports required to be filed by it under Section
13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports, it will
upon the request of any Holder or beneficial owner of Registrable Securities (i)
make publicly available such information (including, without limitation, the
information specified in Rule 144(c)(2) under the ▇▇▇▇ ▇▇▇) as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to
be delivered, promptly following a request by any Holder or beneficial owner of
Registrable Securities or any prospective purchaser or transferee designated by
such Holder or beneficial owner, such information (including, without
limitation, the information specified in Rule 144A(d)(4) under the ▇▇▇▇ ▇▇▇) as
is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and (iii)
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 Securities without registration under the 1933 Act within the
limitation of the exemptions provided by (x) Rule 144 under the 1933 Act, as
such Rule may be amended from time to time, (y) Rule 144A under the 1933 Act, as
such Rule may be amended from time to time, or (z) any similar rules or
regulations hereafter adopted by the SEC. Upon the request of any Holder or
beneficial owner of Registrable Securities, 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
Securities in this Agreement or otherwise conflicts with the provisions hereof;
provided that the Company will not be precluded from entering into any agreement
after the date hereof which may or does result, directly or indirectly, in the
payment of Additional Interest. The rights granted to the Holders hereunder do
not and will not in any way conflict with and are not and will not be
inconsistent with the rights granted to the holders of any of the Company's
other issued and outstanding securities under any other agreements entered into
by the Company or any of its subsidiaries.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, 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
25
obtained the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or departure.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder or Participating Broker-Dealer (other than an Initial Purchaser), at the
most current address set forth on the records of the registrar under the
Indenture, (ii) if to an Initial Purchaser, at the most current address given by
such Initial Purchaser to the Company by means of a notice given in accordance
with the provisions of this Section 6(d), which address initially is the address
set forth in the Purchase Agreement; (iii) if to the Company, initially at the
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 6(d) and (iv) if to any Underwriter, at the most current address given
by such Underwriter to the Company by means of a notice given in accordance with
the provisions of this Section 6(d), which address initially shall be the
address set forth in the applicable underwriting agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when receipt
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 each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such Person shall be entitled to
receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder and Participating Broker-Dealer
shall be a third party beneficiary of the agreements made hereunder between the
Company, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder. Each Holder, by its acquisition of Securities, shall be
deemed to have agreed to the provisions of Section 5(b) hereof.
26
(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) Restriction on Resales. If (i) the Company or any of its subsidiaries
or affiliates (as defined in Rule 144 under the ▇▇▇▇ ▇▇▇) shall redeem, purchase
or otherwise acquire any Registrable Security or any Exchange Security which is
a "restricted security" within the meaning of Rule 144 under the 1933 Act, the
Company will deliver or cause to be delivered such Registrable Security or
Exchange Security, as the case may be, to the Trustee for cancellation and
neither the Company nor any of its subsidiaries or affiliates will hold or
resell such Registrable Security or Exchange Security or issue any new Security
or Exchange Security to replace the same.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) 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.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
SUPERVALU INC.
By: /s/
----------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
U.S. BANCORP ▇▇▇▇▇ ▇▇▇▇▇▇▇ INC.
BANC ONE CAPITAL MARKETS, INC.
DEUTSCHE BANK SECURITIES INC.
WACHOVIA SECURITIES, INC.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: /s/
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
28