EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 19, 2003
By and Among
BOWATER INCORPORATED,
as Issuer,
and
UBS SECURITIES LLC,
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Scotia Capital (USA) Inc.
BMO ▇▇▇▇▇▇▇ ▇▇▇▇▇ CORP.
Wachovia Securities, Inc.
SunTrust Capital Markets, Inc.
TD Securities (USA) Inc.
BNY Capital markets, inc
Banc of America Securities LLC
as Initial Purchasers
$400,000,000 61/2% Notes due 2013
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TABLE OF CONTENTS
Page
Section 1. Definitions........................................................................................ 1
Section 2. Exchange Offer..................................................................................... 4
Section 3. Shelf Registration................................................................................. 7
Section 4. Liquidated Damages................................................................................. 8
Section 5. Registration Procedures............................................................................ 9
Section 6. Registration Expenses.............................................................................. 17
Section 7. Indemnification.................................................................................... 17
Section 8. Rules 144 and 144A................................................................................. 20
Section 9. Underwritten Registrations......................................................................... 20
Section 10. Miscellaneous...................................................................................... 21
(a) No Inconsistent Agreements................................................................. 21
(b) Adjustments Affecting Registrable Notes.................................................... 21
(c) Amendments and Waivers..................................................................... 21
(d) Notices.................................................................................... 21
(e) Successors and Assigns..................................................................... 22
(f) Counterparts............................................................................... 23
(g) Headings................................................................................... 23
(h) GOVERNING LAW.............................................................................. 23
(i) Severability............................................................................... 23
(j) Securities Held by the Company or Its Affiliates........................................... 23
(k) Third-Party Beneficiaries.................................................................. 23
(l) Attorneys' Fees............................................................................ 23
(m) Entire Agreement........................................................................... 23
SIGNATURES....................................................................................................... S-1
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of June 19, 2003, by and among BOWATER INCORPORATED, a Delaware corporation
(the "Company"), on the one hand, and UBS SECURITIES LLC, ▇.▇. ▇▇▇▇▇▇ Securities
Inc., Banc of America Securities LLC, Scotia Capital (USA) Inc., Wachovia
Securities, Inc., SunTrust Capital Markets, Inc., TD Securities (USA) Inc., BMO
▇▇▇▇▇▇▇ ▇▇▇▇▇ Corp. and BNY Capital Markets, Inc. and the other Initial
Purchasers named in the Purchase Agreement referred to below ( collectively the
"Initial Purchasers"), for whom UBS Securities LLC is acting as representative,
on the other hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 16, 2003, by and among the Company and the Initial
Purchasers (the "Purchase Agreement"), relating to the offering of $400,000,000
aggregate principal amount of the Company's 61/2% Notes due 2013, (the "Notes").
The execution and delivery of this Agreement is a condition to the Initial
Purchasers' obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
"action" shall have the meaning set forth in Section 7(c)
hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the first
introductory paragraph hereto.
"Applicable Period" shall have the meaning set forth in
Section 2(b) hereof.
"Board of Directors" shall have the meaning set forth in
Section 5 hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
"Company" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Company's permitted successors and
assigns.
"Commission" shall mean the Securities and Exchange
Commission.
"day" shall mean a calendar day.
"Damages Payment Date" shall have the meaning set forth in
Section 4(b) hereof.
"Delay Period" shall have the meaning set forth in Section 5
hereof.
"Effectiveness Period" shall have the meaning set forth in
Section 3(b) hereof.
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"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Notes" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer" shall have the meaning set forth in Section
2(a) hereof.
"Exchange Offer Registration Statement" shall have the meaning
set forth in Section 2(a) hereof.
"Holder" shall mean any holder of a Registrable Note or
Registrable Notes.
"Indemnified Party" shall have the meaning set forth in
Section 7(c) hereof.
"Indemnifying Party" shall have the meaning set forth in
Section 7(c) hereof.
"Indenture" shall mean the Indenture, dated as of June 19,
2003, between the Company and The Bank of New York, as trustee, pursuant to
which the Notes are being issued, as amended or supplemented from time to time
in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
first introductory paragraph hereof.
"Inspectors" shall have the meaning set forth in Section 5(n)
hereof.
"Issue Date" shall mean June 19, 2003, the date of original
issuance of the Notes.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on
which banking institutions in New York, New York are required by law, regulation
or executive order to remain closed.
"Liquidated Damages" shall have the meaning set forth in
Section 4(a) hereof.
"Losses" shall have the meaning set forth in Section 7(a)
hereof.
"Notes" shall have the meaning set forth in the second
introductory paragraph hereto.
"Participant" shall have the meaning set forth in Section 7(a)
hereof.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 2(b) hereof.
"Person" shall mean an individual, corporation, partnership,
joint venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"Private Exchange" shall have the meaning set forth in Section
2(b) hereof.
"Private Exchange Notes" shall have the meaning set forth in
Section 2(b) hereof.
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"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, any prospectus subject to
completion and a prospectus that includes any information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
"Purchase Agreement" shall have the meaning set forth in the
second introductory paragraph hereof.
"Records" shall have the meaning set forth in Section 5(n)
hereof.
"Registrable Notes" shall mean each Note upon its original
issuance and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(iv) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iv) hereof is applicable, the Exchange Offer Registration Statement)
covering such Note, Exchange Note or Private Exchange Note has been declared
effective by the Commission and such Note, Exchange Note or such Private
Exchange Note, as the case may be, has been disposed of in accordance with such
effective Registration Statement, (ii) such Note has been exchanged pursuant to
the Exchange Offer for an Exchange Note or Exchange Notes that may be resold
without restriction under state and federal securities laws, (iii) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or
Private Exchange Note has been sold in compliance with Rule 144 or is salable
pursuant to Rule 144(k).
"Registration Default" shall have the meaning set forth in
Section 4(a) hereof.
"Registration Statement" shall mean any appropriate
registration statement of the Company covering any of the Registrable Notes
filed with the Commission under the Securities Act, 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 by reference therein.
"Requesting Participating Broker-Dealer" shall have the
meaning set forth in Section 2(b) hereof.
"Rule 144" shall mean Rule 144 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144A) or regulation hereafter adopted by the Commission
providing for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not affiliates of
an issuer of such securities being free of the registration and prospectus
delivery requirements of the Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule (other than Rule 144) or regulation hereafter adopted by the Commission.
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"Rule 415" shall mean Rule 415 promulgated under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shelf Filing Event" shall have the meaning set forth in
Section 2(c) hereof.
"Shelf Registration" shall have the meaning set forth in
Section 3(a) hereof.
"Shelf Registration Statement" shall mean a Registration
Statement filed in connection with a Shelf Registration.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange Notes and Private
Exchange Notes.
"Underwritten registration or underwritten offering" shall
mean a registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
Section 2. Exchange Offer
(a) The Company shall (i) file a Registration Statement
(the "Exchange Offer Registration Statement") within 90 days after the Issue
Date with the Commission on an appropriate registration form with respect to a
registered offer (the "Exchange Offer") to exchange any and all of the
Registrable Notes for a like aggregate principal amount of notes (the "Exchange
Notes") that are identical in all material respects to the Notes (except that
the Exchange Notes shall not contain terms with respect to transfer restrictions
or Liquidated Damages upon a Registration Default), (ii) use its reasonable best
efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act within 180 days after the Issue Date and
(iii) use its reasonable best efforts to consummate the Exchange Offer within 45
days following the effective date of the Registration Statement. Upon the
Exchange Offer Registration Statement being declared effective by the
Commission, the Company will offer the Exchange Notes in exchange for surrender
of the Notes. The Company shall keep the Exchange Offer open for not less than
20 Business Days (or longer if required by applicable law) after the date notice
of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be
required to represent to the Company in writing that (i) any Exchange Notes to
be received by it will be acquired in the ordinary course of its business, (ii)
it has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) it is not an affiliate
of the Company, as defined by rule 405 of the Securities Act, or if it is an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, it is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes, (v) if such Holder is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a prospectus in connection with any resale of
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such Exchange Notes and (vi) such Holder has full power and authority to
transfer the Notes in exchange for the Exchange Notes and that the Company will
acquire good and unencumbered title thereto free and clear of any liens,
restrictions, charges or encumbrances and not subject to any adverse claims.
(b) The Company and the Initial Purchasers acknowledge
that the staff of the Commission has taken the position that any broker-dealer
that elects to exchange Notes that were acquired by such broker-dealer for its
own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a "Participating Broker-Dealer") may be
deemed to be an "underwriter" within the meaning of the Securities Act and must
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Notes (other than a resale of an
unsold allotment resulting from the original offering of the Notes).
The Company and the Initial Purchasers also acknowledge that
the staff of the Commission has taken the position that if the Prospectus
contained in the Exchange Offer Registration Statement includes a plan of
distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the
Participating Broker-Dealers or specifying the amount of Exchange Notes owned by
them, such Prospectus may be delivered by Participating Broker-Dealers to
satisfy their prospectus delivery obligations under the Securities Act in
connection with resales of Exchange Notes for their own accounts, so long as the
Prospectus otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Company agrees
to use its reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period not to exceed 180 days after the
date on which the Exchange Registration Statement is declared effective, or such
longer period if extended pursuant to the last paragraph of Section 5 hereof
(such period, the "Applicable Period"), or such earlier date as all Requesting
Participating Broker-Dealers shall have resold all Exchange Notes acquired in
the Exchange Offer. The Company shall include a plan of distribution in such
Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers or any Holder, as the case may be, holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of
an unsold allotment in an initial distribution, or if any Holder is not entitled
to participate in the Exchange Offer, the Company upon the request of the
Initial Purchasers or any such Holder, as the case may be, shall simultaneously
with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver
to the Initial Purchasers or any such Holder, as the case may be, in exchange
(the "Private Exchange") for such Notes held by the Initial Purchasers or any
such Holder, as the case may be, a like principal amount of notes (the "Private
Exchange Notes") of the Company that are identical in all material respects to
the Exchange Notes except that the Private Exchange Notes may be subject to
restrictions on transfer and bear a legend to such effect. The Private Exchange
Notes shall be issued pursuant to the same indenture as the Exchange Notes and
bear the same CUSIP number as the Exchange Notes.
Upon consummation of the Exchange Offer in accordance with
this Section 2, the Company shall have no further registration obligations other
than the Company's continuing registration obligations with respect to (i)
Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers
and (iii) Notes or Exchange Notes as to which clause (c)(iii) of this Section 2
applies.
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In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and
not validly withdrawn by the Holders pursuant to the Exchange Offer and
the Private Exchange, if any;
(2) deliver or cause to be delivered to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each such Holder of Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Registrable Notes of such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i) the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Company to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Company and (iii) all governmental approvals shall have been obtained, which
approvals the Company deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture (in either case, with such changes as are necessary to
comply with any requirements of the Commission to effect or maintain the
qualification thereof under the TIA) and which, in either case, has been
qualified under the TIA and shall provide that (a) the Exchange Notes shall not
be subject to the transfer restrictions set forth in the Indenture and (b) the
Private Exchange Notes shall be subject to the transfer restrictions set forth
in the Indenture. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that none of the Exchange
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Notes, the Private Exchange Notes or the Notes will have the right to vote or
consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the
applicable interpretations of the staff of the Commission do not permit the
Company to effect the Exchange Offer, (ii) for any reason the Exchange Offer is
not consummated within 225 days of the Issue Date, (iii) any Holder, other than
an Initial Purchaser, is prohibited by law or the applicable interpretations of
the staff of the Commission from participating in the Exchange Offer, (iv) in
the case of any Holder who participates in the Exchange Offer, such Holder does
not receive Exchange Notes on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of the Company within the meaning of
the Securities Act) or (v) the Initial Purchasers so request with respect to
Notes or Private Exchange Notes that have, or that are reasonably likely to be
determined to have, the status of unsold allotments in an initial distribution
(each such event referred to in clauses (i) through (v) of this sentence, a
"Shelf Filing Event"), then the Company shall file a Shelf Registration pursuant
to Section 3 hereof.
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Company shall file with the
Commission a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable Notes not exchanged
in the Exchange Offer, Private Exchange Notes and Exchange Notes as to which
Section 2(c)(iv) is applicable (the "Shelf Registration"). The Company shall use
its reasonable best efforts to file with the Commission the Shelf Registration
Statement as promptly as practicable and in any event on or prior to the 30th
day following the Shelf Filing Event. The Shelf Registration shall be on Form
S-1 or another appropriate form permitting registration of such Registrable
Notes for resale by Holders in the manner or manners reasonably designated by
them (including, without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the Registrable Notes to be
included in the Shelf Registration.
(b) The Company shall use its reasonable best efforts (x)
to cause the Shelf Registration to be declared effective under the Securities
Act on or prior to the 120th day following the occurrence of the Shelf Filing
Event and (y) to keep the Shelf Registration continuously effective under the
Securities Act for the period ending on the date which is two years from the
Issue Date, subject to extension pursuant to the penultimate paragraph of
Section 5 hereof (the "Effectiveness Period"), or such shorter period ending
when all Registrable Notes covered by the Shelf Registration have been sold in
the manner set forth and as contemplated in the Shelf Registration; provided,
however, that (i) the Effectiveness Period in respect of the Shelf Registration
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) the Company may suspend the
effectiveness of the Shelf Registration Statement by written notice to the
Holders solely as a result of the filing of a post-effective amendment to the
Shelf Registration Statement to incorporate annual audited financial information
with respect to the Company where such post-effective amendment is not yet
effective and needs to be declared effective to permit Holders to use the
related Prospectus.
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(c) Supplements and Amendments. The Company agrees to
supplement or make amendments to the Shelf Registration Statement as and when
required by the rules, regulations or instructions applicable to the
registration form used for such Shelf Registration Statement or by the
Securities Act or rules and regulations thereunder for shelf registration, or if
reasonably requested by the Holders of a majority in aggregate principal amount
of the Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
Section 4. Liquidated Damages
(a) The Company and the Initial Purchasers agree that the
Holders will suffer damages if the Company fails to fulfill its obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Company
agrees that if:
(i) the Exchange Offer Registration Statement is not
filed with the Commission on or prior to the 90th day following the
Issue Date or, if that day is not a Business Day, the next day that is
a Business Day,
(ii) the Exchange Offer Registration Statement is not
declared effective on or prior to the 180th day following the Issue
Date or, if that day is not a Business Day, the next day that is a
Business Day,
(iii) the Exchange Offer is not consummated on or prior to
the 45th day following the date the registration statement is declared
effective or, if that day is not a Business Day, the next day that is a
Business Day; or
(iv) the Shelf Registration Statement is required to be
filed, but is not declared effective on or prior to the 120th day
following the occurrence of the Shelf Filing Event, or, if that day is
not a Business Day, the next day that is a Business Day, or the Shelf
Registration Statement is declared effective by such date but
thereafter ceases to be effective or usable (except if the Shelf
Registration ceases to be effective or usable as specifically permitted
by the penultimate paragraph of Section 5 hereof) and is not succeeded
immediately by an additional registration statement filed and declared
effective.
(each such event referred to in clauses (i) through (iv) a "Registration
Default"), liquidated damages in the form of additional cash interest
("Liquidated Damages") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Liquidated Damages will be 0.25% per
annum from and including the date on which any such Registration Default shall
occur to, but excluding, the earlier of (1) the date on which all Registration
Defaults have been cured or (2) the date on which all the Notes and Exchange
Notes otherwise become freely transferable by Holders other than affiliates of
the Company without further registration under the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated
Damages payable shall not increase because more than one Registration Default
has occurred and is pending and (2) a Holder of Notes or Exchange Notes who is
not entitled to the benefits of the Shelf Registration Statement (i.e., such
Holder has not elected to include information) shall not be entitled to
Liquidated Damages with respect to a Registration Default that pertains to the
Shelf Registration Statement.
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(b) So long as Notes remain outstanding, the Company
shall notify the Trustee within five Business Days after each and every date on
which an event occurs in respect of which Liquidated Damages is required to be
paid. Any amounts of Liquidated Damages due pursuant to clauses (a)(i), (a)(ii),
(a)(iii) or (a)(iv) of this Section 4 will be payable in cash semi-annually on
each June 15 and December 15 (each a "Damages Payment Date"), commencing with
the first such date occurring after any such Liquidated Damages commences to
accrue, to Holders to whom regular interest is payable on such Damages Payment
Date with respect to Notes that are Registrable Securities. The amount of
Liquidated Damages for Registrable Notes will be determined by multiplying the
rate of Liquidated Damages by the aggregate principal amount of all such
Registrable Notes outstanding on the Damages Payment Date following such
Registration Default in the case of the first such payment of Liquidated Damages
with respect to a Registration Default (and thereafter at the next succeeding
Damages Payment Date until the cure of such Registration Default), multiplied by
a fraction, the numerator of which is the number of days such Liquidated Damages
rate was applicable during such period (determined on the basis of a 360-day
year comprised of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Section 2 or 3 hereof, the Company shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company hereunder, the
Company shall:
(a) Prepare and file with the Commission the Registration
Statement or Registration Statements prescribed by Section 2 or 3
hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided, however, that, if (1) such filing is
pursuant to Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Company shall furnish to and afford the Holders of the Registrable
Notes covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, their counsel (if such counsel is
known to the Company) and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at
least five Business Days prior to such filing or such later date as is
reasonable under the circumstances). The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of
the Registrable Notes covered by such Registration Statement, or any
such Participating Broker-Dealer, as the case may be, their counsel, or
the managing underwriters, if any, shall reasonably object on a timely
basis.
(b) Prepare and file with the Commission such amendments
and post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case may
be; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so
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supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and
comply with the applicable provisions of the Securities Act and the
Exchange Act with respect to the disposition of all securities covered
by such Registration Statement as so amended or in such Prospectus as
so supplemented and with respect to the subsequent resale of any
securities being sold by a Participating Broker-Dealer covered by any
such Prospectus, in each case, in accordance with the intended methods
of distribution set forth in such Registration Statement or Prospectus,
as so amended.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period relating thereto from whom the Company has received written
notice that such Broker-Dealer will be a Participating Broker-Dealer in
the applicable Exchange Offer, notify the selling Holders of
Registrable Notes, or each such Participating Broker-Dealer, as the
case may be, their counsel (if such counsel is known to the Company)
and the managing underwriters, if any, as promptly as possible, and, if
requested by any such Person, confirm such notice in writing, (i) when
a Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Company,
one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and exhibits),
(ii) of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus or the initiation of
any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the representations and
warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated by Section 5(m) hereof cease to be
true and correct in all material respects, (iv) of the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration
Statement or any of the Registrable Notes or the Exchange Notes for
offer or sale in any jurisdiction, or the initiation or threatening of
any proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known to the
Company that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements
to such Registration Statement, Prospectus or documents so that, in the
case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, and (vi) of the Company's determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is
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required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification) of any
of the Registrable Notes or the Exchange Notes, as the case may be, for
sale in any jurisdiction, and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order at
the earliest practicable moment.
(e) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period and if required by the applicable rules and regulations of the
Commission and if reasonably requested by the managing underwriter or
underwriters (if any), the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement
or any Participating Broker-Dealer, as the case may be, (i) promptly
incorporate in such Registration Statement or Prospectus a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders or any Participating
Broker-Dealer, as the case may be (based upon advice of counsel),
determine is reasonably necessary to be included therein and (ii) make
all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however,
that the Company shall not be required to take any action hereunder
that would, in the written opinion of counsel to the Company, violate
applicable laws.
(f) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, who so requests,
their counsel (if such counsel is known to the Company) and each
managing underwriter, if any, at the sole expense of the Company, one
conformed copy of the Registration Statement or Registration Statements
and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated
or deemed to be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of Registrable Notes or each
such Participating Broker-Dealer, as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the
Company, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request in order to facilitate the disposition
of the Registrable Notes owned by such Person; and, subject to the last
paragraph of this Section 5, the Company hereby consents to the use of
such Prospectus and each amendment or supplement thereto by each of the
selling Holders of
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Registrable Notes or each such Participating Broker-Dealer, as the case
may be, and the underwriters or agents, if any, and dealers (if any),
in connection with the offering and sale of the Registrable Notes
covered by, or the sale by Participating Broker-Dealers of the Exchange
Notes pursuant to, such Prospectus and any amendment or supplement
thereto.
(h) Prior to any public offering of Registrable Notes or
Exchange Notes or any delivery of a Prospectus contained in the
Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, use its reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Notes or
Exchange Notes, as the case may be, for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United
States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters reasonably request; provided,
however, that where Exchange Notes or Registrable Notes are offered
other than through an underwritten offering, the Company agrees to use
its reasonable best efforts to cause Blue Sky investigations to be
performed and registrations and qualifications required to be filed
pursuant to this Section 5(h) to be filed; keep each such registration
or qualification (or exemption therefrom) effective during the period
such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of such Exchange Notes or
Registrable Notes covered by the applicable Registration Statement;
provided, however, that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so
subject, (C) subject itself to taxation in any such jurisdiction where
it is not then so subject or (D) incur expenses that the Company
reasonably believes are excessive in connection with such requested
qualification or registration.
(i) If a Shelf Registration is filed pursuant to Section
3 hereof, unless any Registrable Notes shall be in book-entry only
form, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
other than as required by applicable law and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or selling
Holders may request at least five Business Days prior to any sale of
such Registrable Notes.
(j) Use its reasonable best efforts to cause the
Registrable Notes or Exchange Notes covered by any Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be reasonably necessary to enable the
seller or sellers thereof or the underwriter or underwriters, if any,
to consummate the disposition of such Registrable Notes or Exchange
Notes, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Company will
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
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(k) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, upon the occurrence of any event contemplated by Section
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) and the penultimate paragraph of this Section
5) file with the Commission, at the sole expense of the Company, a
supplement or post-effective amendment to the Registration Statement or
a supplement to 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 Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not 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, in the light of the circumstances under which they were made,
not misleading.
(l) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) unless any Registrable
Notes shall be in book-entry only form, provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for
the Registrable Notes.
(m) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes and take all such other actions as
are reasonably requested by the managing underwriter or underwriters in
order to expedite or facilitate the registration or the disposition of
such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Company and its subsidiaries, as
then conducted (including any acquired business, properties or entity,
if applicable), and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of debt securities similar to
the Notes, and confirm the same in writing if and when requested; (ii)
use its reasonable best efforts to obtain the written opinions of
counsel to the Company (which may, in the discretion of the Company, be
internal counsel) and written updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings and
such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) use its reasonable best efforts to
obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten offerings; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 hereof
(or such other provisions and procedures acceptable to Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement
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and the managing underwriter or underwriters or agents) with respect to
all parties to be indemnified pursuant to said Section; provided that
the Company shall not be required to provide indemnification to any
underwriter selected in accordance with the provisions of Section 9
hereof with respect to information relating to such underwriter
furnished in writing, including by electronic means, to the Company by
or on behalf of such underwriter expressly for inclusion in such
Registration Statement. The above shall be done at each closing under
such underwriting agreement, or as and to the extent required
thereunder.
(n) If (1) a Shelf Registration is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any selling Holder of such
Registrable Notes being sold or each such Participating Broker-Dealer,
as the case may be, any underwriter participating in any such
disposition of Registrable Notes, if any, and any attorney, accountant
or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and instruments of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration
Statement and Prospectus. Prior to any Inspection, each Inspector shall
agree in writing that it will keep the Records confidential and that it
will not disclose, or use in connection with any market transactions in
violation of any applicable securities laws, any Records that the
Company determines, in good faith, to be confidential and that it
notifies the Inspectors in writing are confidential unless (i) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement or Prospectus,
(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction, (iii) disclosure of
such information is necessary or advisable in the opinion of counsel
for an Inspector (a copy of which is delivered to the Company) in
connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement or
the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iv) the information in
such Records has been made generally available to the public; provided,
however, that (i) each Inspector shall agree to use reasonable best
efforts to provide notice to the Company of the potential disclosure of
any information by such Inspector pursuant to clause (i), (ii) or (iii)
of this sentence to permit the Company to obtain a protective order (or
waive the provisions of this paragraph (n)) and (ii) each such
Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the
extent such action is otherwise not inconsistent with, an impairment of
or in derogation of the rights and interests of the Holder or any
Inspector.
(o) Provide an indenture trustee for the Registrable
Notes or the Exchange Notes, as the case may be, and cause the
Indenture or the trust indenture provided for in Section 2(a) hereof to
be qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the Registrable
Notes or Exchange
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Notes, as applicable, to effect such changes to such indenture as may
be required for such indenture to be so qualified in accordance with
the terms of the TIA; and execute, and use its reasonable best efforts
to cause such trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents required to be
filed with the Commission to enable such indenture to be so qualified
in a timely manner.
(p) Comply with all applicable rules and regulations of
the Commission and make generally available to the Company's
securityholders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Notes or Exchange
Notes are sold to underwriters in a firm commitment or best efforts
underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of
the Company after the effective date of a Registration Statement, which
statements shall cover said 12-month periods consistent with the
requirements of Rule 158.
(q) Upon the reasonable request of Holders of a majority
in aggregate amount of Registrable Notes then outstanding, upon
consummation of the Exchange Offer or a Private Exchange, use its
reasonable best efforts to obtain an opinion of counsel to the Company
(which may, in the discretion of the Company, be internal counsel), in
a form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as the
case may be, that the Exchange Notes or Private Exchange Notes, as the
case may be, and the related indenture constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with its respective terms, subject to customary exceptions
and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, ▇▇▇▇, or cause to be marked, on such Registrable Notes
that such Registrable Notes are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be;
provided that in no event shall such Registrable Notes be marked as
paid or otherwise satisfied.
(s) Use its reasonable best efforts to take all other
steps reasonably necessary or advisable to effect the registration of
the Exchange Notes and/or Registrable Notes covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Notes or
Exchange Notes as to which any registration is being effected to furnish to the
Company such information regarding such seller and the distribution of such
Registrable Notes or Exchange Notes as the Company may, from time to time,
reasonably request, including, without limitation, furnishing a written notice
and questionnaire containing such information, representations and agreements as
the Company may reasonably request. The Company may exclude from such
registration the Registrable Notes of any seller so long as such seller fails to
furnish such information within a reasonable time after receiving such request
and in the event of such an exclusion, the Company shall have no further
obligation under this Agreement (includ-
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ing, without limitation, the obligations under Section 4) with respect to such
seller or any subsequent Holder of such Registrable Notes. Each seller as to
which any Shelf Registration is being effected shall be required to furnish
promptly to the Company all information required to be disclosed in order to
make any information previously furnished to the Company by such seller not
materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
applicable Registration Statement filed or prepared subsequent to the time that
such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the Company (x) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv), or
5(c)(v) hereof, or (y) that the Board of Directors of the Company (the "Board of
Directors"), or a committee of the Board of Directors, has resolved that the
Company has a bona fide business purpose for doing so, then the Company may
delay the filing or the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement (if not then filed or effective,
as applicable) and shall not be required to maintain the effectiveness thereof
or amend or supplement the Exchange Offer Registration Statement or the Shelf
Registration, in all cases, for a period (a "Delay Period") expiring upon the
earlier to occur of (i) in the case of the immediately preceding clause (x),
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and has received copies of any amendments
or supplements thereto or (ii) in the case of the immediately preceding clause
(y), the date which is the earlier of (A) the date on which such business
purpose ceases to interfere with the Company's obligations to file or maintain
the effectiveness of any such Registration Statement pursuant to this Agreement
or (B) 60 days after the Company notifies the Holders of such good faith
determination. There shall not be more than 60 days of Delay Periods during any
12-month period. Each of the Effectiveness Period and the Applicable Period, if
applicable, shall be extended by the number of days during any Delay Period. Any
Delay Period will not alter the obligations of the Company to pay Liquidated
Damages under the circumstances set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
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Section 6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Company (other than any agency fees or
commissions and underwriting discounts or commissions) shall be borne by the
Company, whether or not the Exchange Offer Registration Statement or the Shelf
Registration is filed or becomes effective or the Exchange Offer is consummated,
including, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses of compliance with state securities or
Blue Sky laws (including, without limitation, reasonable fees and disbursements
of counsel in connection with Blue Sky qualifications of the Registrable Notes
or Exchange Notes and determination of the eligibility of the Registrable Notes
or Exchange Notes for investment under the laws of such jurisdictions (x) where
the holders of Registrable Notes are located, in the case of an Exchange Offer,
or (y) as provided in Section 5(h) hereof, in the case of a Shelf Registration
or in the case of Exchange Notes to be sold by a Participating Broker-Dealer
during the Applicable Period)), (ii) printing expenses, including, without
limitation, any expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Company and reasonable fees and disbursements of one special counsel for all of
the sellers of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof), (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, but only if and to the extent that the Company desires such
insurance, (vii) fees and expenses of all other Persons retained by the Company,
(viii) internal expenses of the Company (including, without limitation, all
salaries and expenses of officers and employees of the Company performing legal
or accounting duties), (ix) the expense of any annual audit, (x) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement. Notwithstanding the foregoing or anything to the
contrary, each Holder shall pay all agency fees and commissions and all
underwriting discounts and commissions of any underwriters with respect to any
Registrable Notes sold by or on behalf of it and the fees and disbursements of
any counsel or other advisors or experts retained by such Holder (other than
counsel specifically referred to above).
Section 7. Indemnification
(a) The Company agrees to indemnify and hold harmless
each Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, each Person, if any, who controls
any such Person within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act, the agents, employees, officers and directors
of each Holder and each such Participating Broker-Dealer and the agents,
employees, officers and directors of any such controlling Person (each, a
"Participant") from and against any and all losses, liabilities, claims, damages
and expenses (including, but not limited to, reasonable attorneys' fees and any
and all reasonable out-of-pocket expenses actually incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all reasonable amounts paid in settlement of any
claim
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or litigation (in the manner set forth in clause (c) below)) (collectively,
"Losses") to which they or any of them may become subject under the Securities
Act, the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the case of the Prospectus, in the
light of the circumstances under which they were made, not misleading, provided
that the Company will not be liable under this Section 7(a) as a result of the
terms described in clauses (A) and (B) of Section 5(a)(i) of the Purchase
Agreement, and (i) the foregoing indemnity shall not be available to any
Participant insofar as such Losses are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to such Participant furnished to the
Company in writing, including by electronic means, by or on behalf of such
Participant expressly for use therein, and (ii) that the foregoing indemnity
with respect to any preliminary prospectus shall not inure to the benefit of any
Participant from whom the Person asserting such Losses purchased Registrable
Notes if (x) it is established in the related proceeding that such Participant
failed to send or give a copy of the Prospectus (as amended or supplemented if
such amendment or supplement was furnished to such Participant prior to the
written confirmation of such sale) to such Person with or prior to the written
confirmation of such sale, if required by applicable law, and (y) the untrue
statement or omission or alleged untrue statement or omission was completely
corrected in the Prospectus (as amended or supplemented if amended or
supplemented as aforesaid) and such Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission that was the
subject matter of the related proceeding. This indemnity agreement will be in
addition to any liability that the Company may otherwise have, including, but
not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly,
to indemnify and hold harmless the Company, each Person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, and each of their respective agents, employees,
officers and directors and the agents, employees, officers and directors of any
such controlling Person from and against any Losses to which they or any of them
may become subject under the Securities Act, the Exchange Act or otherwise
insofar as such Losses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment thereto) or Prospectus
(as amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or any preliminary prospectus, or caused by, arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the case of the Prospectus, in the light of the circumstances under which
they were made, not misleading, in each case to the extent, but only to the
extent, that any such Loss arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with information relating to such Participant furnished
in writing, including by electronic means, to the Company by or on behalf of
such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under
subsection 7(a) or 7(b) above of notice of the commencement of any action, suit
or proceeding (collectively, an "action"), such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the com-
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mencement of such action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have
under this Section 7 except to the extent that it has been prejudiced in any
material respect by such failure). In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
of such action, the indemnifying party will be entitled to participate in such
action, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense of such action with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded, after consultation
with counsel, that there may be defenses available to it or them that are
different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such reasonable fees and expenses of counsel
shall be borne by the indemnifying parties. In no event shall the indemnifying
party be liable for the reasonable fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. Any such separate firm for the Participants shall
be designated in writing by Participants who sold a majority in interest of
Registrable Notes sold by all such Participants and shall be reasonably
acceptable to the Company and any such separate firm for the Company, its
affiliates, officers, directors, representatives, employees and agents and such
control Person of the Company shall be designated in writing by the Company and
shall be reasonably acceptable to the Holders. An indemnifying party shall not
be liable for any settlement of any claim or action effected without its written
consent, which consent may not be unreasonably withheld. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances
in which the indemnification provided for in this Section 7 is for any reason
held to be unavailable from the indemnifying party, or is insufficient to hold
harmless a party indemnified under this Section 7, each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnified party, on
the one hand, and each indemnifying party, on the other hand, in connection with
the statements or omissions that resulted in such Losses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and each Participant, on the other hand, shall be
deemed to be
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in the same proportion as (x) the total proceeds from the sale of the Notes to
the Initial Purchasers (net of discounts and commissions but before deducting
expenses) received by the Company is to (y) the total net profit received by
such Participant in connection with the sale of the Registrable Notes. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or such Participant and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission or alleged statement or omission.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall any Participant be required to
contribute any amount in excess of the amount by which the net profit received
by such Participant in connection with the sale of the Registrable Notes exceeds
the amount of any damages that such Participant has otherwise been required to
pay by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made against another party or parties under this Section 7, notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7 or otherwise, except to the extent that it has been prejudiced in any
material respect by such failure; provided, however, that no additional notice
shall be required with respect to any action for which notice has been given
under this Section 7 for purposes of indemnification. Anything in this section
to the contrary notwithstanding, no party shall be liable for contribution with
respect to any action or claim settled without its written consent, provided,
however, that such written consent was not unreasonably withheld.
Section 8. Rules 144 and 144A
The Company covenants that it will file the reports required,
if any, to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time the Company is not required to file such reports, they will, upon
the reasonable request of any Holder or beneficial owner of Registrable Notes,
make available such information necessary to permit sales pursuant to Rule 144A
under the Securities Act. The Company further covenants that for so long as any
Registrable Notes remain outstanding it will take such further action as any
Holder of Registrable Notes may reasonably request from time to time to enable
such Holder to sell Registrable Notes without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144(k) and Rule
144A under the Securities Act, as such Rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations
If any of the Registrable Notes 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 man-
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age the offering will be selected by the Holders of a majority in aggregate
principal amount of such Registrable Notes included in such offering and shall
be reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder if such Holder does not (a) agree to sell
such Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) complete and execute all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as
of the date hereof, and shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Company's
other issued and outstanding securities under any such agreements. The Company
has not entered and will not enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Company
shall not, directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability of the
Holders of Registrable Notes to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given except pursuant to a
written agreement duly signed and delivered by (I) the Company and (II)(A) the
Holders of not less than a majority in aggregate principal amount of the then
outstanding Registrable Notes and (B) in circumstances that would adversely
affect the Participating Broker-Dealers, the Participating Broker-Dealers
holding not less than a majority in aggregate principal amount of the Exchange
Notes held by all Participating Broker-Dealers; provided, however, that Section
7 and this Section 10(c) may not be amended, modified or supplemented except
pursuant to a written agreement duly signed and delivered by the Company and
each Holder and each Participating Broker-Dealer (including any Person who was a
Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes, as
the case may be, disposed of pursuant to any Registration Statement) affected by
any such amendment, modification, waiver or supplement. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Notes whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect, impair, limit or compromise the
rights of other Holders of Registrable Notes may be given by Holders of at least
a majority in aggregate principal amount of the Registrable Notes being sold
pursuant to such Registration Statement.
(d) Notices. All notices and other communications
(including, without limitation, any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or telecopier:
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(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Company, at the address as follows:
Bowater Incorporated
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 29602-1028
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Treasurer
With a copy to (for informational purposes only):
Bowater Incorporated
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal Department
(iii) if to the Initial Purchasers, at the address as
follows:
c/o UBS Securities LLC
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndicate Department
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
is acknowledged by the recipient's telecopier machine, 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 and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto, the Holders and the Participating Broker-Dealers; provided,
however, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such successor
or assign holds Registrable Notes.
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(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Notes is required hereunder, Registrable Notes held by the Company
or any of its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders and beneficial
owners of Registrable Notes and Participating Broker-Dealers are intended
third-party beneficiaries of this Agreement, and this Agreement may be enforced
by such Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(l) Attorneys' Fees. As between the parties to this
Agreement, in any action or proceeding brought to enforce any provision of this
Agreement, or where any provision hereof is validly asserted as a defense, the
successful party shall be entitled to recover reasonable attorneys' fees
actually incurred in addition to its costs and expenses and any other available
remedy.
(m) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
BOWATER INCORPORATED
By: /s/ ▇. ▇. ▇▇▇▇▇▇
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Name:
Title:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title:
Confirmed and accepted as of the date
first above written on behalf of itself
and the other several Initial Purchasers:
UBS SECURITIES LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director