EXHIBIT 4.8
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REGISTRATION RIGHTS AGREEMENT
Dated as of November 25, 2003
by and among
YELLOW CORPORATION,
Subsidiary Guarantors named herein
and
DEUTSCHE BANK SECURITIES INC.,
as Representative of the Initial Purchasers
3.375% Contingent Convertible Subordinated Notes Due 2023
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TABLE OF CONTENTS
PAGE
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1. Definitions......................................................... 1
2. Shelf Registration.................................................. 4
3. Liquidated Damages.................................................. 6
4. Registration Procedures............................................. 8
4A. Holders' Obligations................................................ 12
5. Registration Expenses............................................... 13
6. Indemnification..................................................... 14
7. Rules 144 and 144A.................................................. 18
8. Underwritten Registrations.......................................... 18
9. Miscellaneous....................................................... ▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇ RIGHTS AGREEMENT
This
Registration Rights Agreement (this "Agreement") is dated as of
November 25, 2003, by and among Yellow Corporation, a Delaware corporation (the
"Company"), the subsidiaries of the Company that are listed on the signature
page hereto (collectively, and together with any subsidiary that in the future
executes a supplemental indenture pursuant to which such subsidiary agrees to
guarantee the Notes (as hereinafter defined, the "Guarantors" and, together with
the Company, the "Issuers") and Deutsche Bank Securities Inc., as representative
of the Initial Purchasers (collectively, the "Initial Purchasers") under the
Purchase Agreement (as defined below).
This Agreement is entered into in connection with that certain Purchase
Agreement, dated November 20, 2003 (the "Purchase Agreement"), by and among the
Issuers and the Initial Purchasers, which provides for the sale by the Company
to the Initial Purchasers of $130,000,000 aggregate principal amount of the
Company's 3.375% Contingent Convertible Senior Notes Due 2023 (the "Firm
Notes"), plus up to an additional $20,000,000 aggregate principal amount of the
same which the Initial Purchasers may subsequently elect to purchase pursuant to
the terms of the Purchase Agreement (the "Option Notes" and, together with the
Firm Notes, the "Notes"), guaranteed by the Guarantors (the "Guarantees"), which
are convertible into common stock, par value $1.00 per share, of the Company
(the "Underlying Shares"). The Notes and the Guarantees are collectively
referred to herein as the "Securities". The Notes are being issued pursuant to
an Indenture dated as of the date hereof, as amended from time to time, (the
"Indenture"), by and between the Company and Deutsche Bank Trust Company
Americas, as Trustee.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchasers and certain
subsequent holder or holders of the Notes or Underlying Shares as provided
herein. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Firm Notes under the Purchase
Agreement.
The parties hereto hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Agreement": See the first introductory paragraph hereto.
"Amendment Effectiveness Deadline Date": See Section 2(d)(i) hereof.
"Amount of Registrable Securities": (a) With respect to Securities
constituting Registrable Securities, the aggregate principal amount of all such
Securities outstanding, (b) with respect to Underlying Shares constituting
Registrable Securities, the aggregate number of such Underlying Shares
outstanding multiplied by the Conversion Price (as defined in the Indenture
relating to the Securities upon the conversion of which such Underlying Shares
were issued) in effect at the time of computing the Amount of Registrable
Securities or, if no such Securities are
then outstanding, the last Conversion Price that was in effect under such
Indenture when any such Securities were last outstanding, and (c) with respect
to combinations thereof, the sum of (a) and (b) for the relevant Registrable
Securities.
"Business Day": Any day that is not a Saturday, Sunday or a day on
which banking institutions in
New York are authorized or required by law to be
closed.
"Closing Date": November 25, 2003.
"Company": See the first introductory paragraph hereto.
"Controlling Person": See Section 6 hereof.
"Damages Payment Date": See Section 3(c) hereof.
"Deferral Period": See Section 3(b) hereof.
"Depositary": The Depository Trust Company until a successor is
appointed by the Company.
"Designated Counsel": One firm of counsel chosen by the Holders of a
majority in Amount of Registrable Securities to be included in a Registration
Statement for a Shelf Registration and identified to the Company in writing
prior to the filing of such Registration Statement.
"Effectiveness Date": The 210th day after the Closing Date.
"Effectiveness Period": See Section 2(a) hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
"Filing Date": The 90th day after the Closing Date.
"Firm Notes": See the second introductory paragraph hereto.
"Guarantees": See the second introductory paragraph hereto.
"Guarantors": See the first introductory paragraph hereto.
"Holder": Any holder of Registrable Securities.
"Indemnified Holder": See Section 6 hereof.
"Indemnified Person": See Section 6 hereof.
"Indemnifying Person": See Section 6 hereof.
"Indenture": See the second introductory paragraph hereto.
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"Initial Purchasers": See the first introductory paragraph hereto.
"Initial Shelf Registration": See Section 2(a) hereof.
"Inspectors": See Section 4(k) hereof.
"Issuers": See the first introductory paragraph hereto.
"Liquidated Damages": See Section 3(a) hereof.
"Notes": See the second introductory paragraph hereto.
"Notice and Questionnaire": means a written notice delivered to the
Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Appendix A to the
Offering Memorandum of the Company relating to the Notes.
"Option Notes": See the second introductory paragraph hereto.
"Person": An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
"Prospectus": 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": See the second introductory paragraph hereto.
"Records": See Section 4(k) hereof.
"Registrable Securities": All Securities and all Underlying Shares upon
original issuance thereof and at all times subsequent thereto until, in the case
of any such Security or Underlying Share, the earliest to occur of (i) a
Registration Statement covering such Security or Underlying Share has been
declared effective by the SEC and such Security or Underlying Share has been
disposed of in accordance with such effective Registration Statement, (ii) such
Security or Underlying Share has been sold in compliance with Rule 144 or could
(except with respect to affiliates of the Company within the meaning of the
Securities Act) be sold in compliance with Rule 144(k), or (iii) such Security
or any Underlying Share ceases to be outstanding.
"Registration Default": See Section 3(a) hereof.
"Registration Statement": Any registration statement of the Issuers
filed with the SEC pursuant to the provisions of this Agreement, including any
amendments and supplements
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to such registration statement, including post-effective amendments, all
exhibits and all documents incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Rule 144": 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 SEC 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": 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 SEC.
"Rule 415": 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 SEC.
"SEC": The Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
"Selling Holder": On any date, any Holder that has delivered a Notice
and Questionnaire to the Company on or prior to such date.
"Shelf Registration": See Section 2(b) hereof.
"Shelf Registration Statement": See Section 2(b) hereof.
"Subsequent Shelf Registration": See Section 2(b) hereof.
"TIA": The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
"Trustee": The Trustee under the Indenture.
"Underlying Shares": See the second introductory paragraph hereto.
"Underwritten Registration" or "Underwritten Offering": A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
2. Shelf Registration.
(a) Shelf Registration. The Issuers shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Securities (the "Initial Shelf
Registration") on or prior to the Filing Date.
The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by Holders in the manner or
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manners designated by them (excluding Underwritten Offerings). The Issuers shall
not permit any securities other than the Registrable Securities to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
The Issuers shall use all reasonable efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep such Initial Shelf Registration continuously
effective under the Securities Act until the date that is two years after the
Closing Date, or if later, the date on which the Option Notes were issued, (such
period, as it may be shortened pursuant to clauses (i), (ii), (iii) or (iv)
immediately following, the "Effectiveness Period"), or such shorter period
ending when (i) all of the Registrable Securities covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) the date on which all the Registrable
Securities (x) held by Persons who are not affiliates of the Issuers may be
resold pursuant to Rule 144(k) under the Securities Act or (y) cease to be
outstanding, (iii) all the Registrable Securities have been resold pursuant to
Rule 144 under the Securities Act or (iv) a Subsequent Shelf Registration
covering all of the Registrable Securities has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below) ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the Registrable Securities registered
thereunder), the Issuers shall use all reasonable efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 45 days of such cessation of effectiveness amend the Initial Shelf
Registration in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Issuers
shall use all reasonable efforts to cause the Subsequent Shelf Registration to
be declared effective under the Securities Act as soon as practicable after such
filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registration was previously continuously effective. As used
herein, the term "Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration and the term "Shelf Registration Statement"
means any Registration Statement filed in connection with a Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of the majority in Amount of Registrable Securities
covered by such Registration Statement.
(d) Notice and Questionnaire. Each Holder agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 4 hereof. Each Holder wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
agrees to deliver a Notice and Questionnaire to the Company at least five (5)
Business Days prior to any intended distribution of Registrable Securities under
the Shelf
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Registration Statement. From and after the date the Initial Shelf Registration
Statement is declared effective, the Issuers shall, as promptly as practicable
after the date a Notice and Questionnaire is delivered, and in any event upon
the later of (x) five (5) Business Days after such date or (y) five (5) Business
Days after the expiration of any Deferral Period (as defined in Section 3(b)) in
effect when the Notice and Questionnaire is delivered:
(i) if required by applicable law, file with the SEC
a post-effective amendment to the Shelf Registration Statement
or prepare and, if required by applicable law, file a
supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or
file any other required document so that the Holder delivering
such Notice and Questionnaire is named as a selling
securityholder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of the Registrable
Securities (subject to the rights of the Issuers under Section
3(b) to create a Deferral Period) in accordance with
applicable law and, if the Issuers shall file a post-effective
amendment to the Shelf Registration Statement, use all
reasonable efforts to cause such post-effective amendment, if
any, to be declared effective under the Securities Act within
forty-five (45) days after the date such post-effective
amendment is required by this clause to be filed (the
"Amendment Effectiveness Deadline Date");
(ii) provide such Holder copies of any documents
filed pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable
after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i);
provided that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period. Notwithstanding anything
contained herein to the contrary, (i) the Company shall be under no obligation
to name any Holder that has not delivered a Notice and Questionnaire to the
Company in accordance with this Section 2(d) and (ii) the Amendment
Effectiveness Deadline Date shall be extended by up to ten (10) Business Days
from the expiration of a Deferral Period (and the Issuers shall incur no
obligation to pay Liquidated Damages during such extension) if such Deferral
Period shall be in effect on the Amendment Effectiveness Deadline Date.
3. Liquidated Damages.
(a) The Issuers and the Initial Purchasers agree that the
Holders of Registrable Securities will suffer damages if the Issuers fail to
fulfill certain of their obligations under Section 2 hereof and that it would
not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuers agree to pay liquidated damages on the Registrable
Securities ("Liquidated Damages") under the circumstances and to the extent set
forth below (each
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of which shall be given independent effect; each a "Registration Default").
Liquidated Damages shall accrue:
(i) if the Initial Shelf Registration is not filed on
or prior to the Filing Date, then commencing on the day after
the Filing Date;
(ii) if a Shelf Registration is not declared
effective by the SEC on or prior to the Effectiveness Date,
then commencing on the day after the Effectiveness Date; and
(iii) if a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective
at any time during the Effectiveness Period (other than as
permitted under Section 3(b)), then commencing on the day
after the date such Shelf Registration ceases to be effective;
provided, however, that Liquidated Damages on the Registrable Securities may not
accrue under more than one of the foregoing clauses (i), (ii) and (iii) at any
one time; provided further, however, that (1) upon the filing of the Initial
Shelf Registration as required hereunder (in the case of clause (a)(i) of this
Section 3), (2) upon the effectiveness of a Shelf Registration as required
hereunder (in the case of clause (a)(ii) of this Section 3), (3) upon the
effectiveness of a Shelf Registration which had ceased to remain effective (in
the case of clause (a)(iii) of this Section 3), Liquidated Damages on the
Registrable Securities as a result of such clause (or the relevant subclause
thereof, as the case may be), shall cease to accrue. It is understood and agreed
that, notwithstanding any provision to the contrary, (1) no Liquidated Damages
shall accrue on any Registrable Securities that are then covered by an effective
Shelf Registration Statement and (2) the right to receive Liquidated Damages
shall be the sole and exclusive remedy to the Holders of the Registrable
Securities for breach by the Issuers of their registration obligations.
(b) Notwithstanding paragraph (a) of this Section 3, the
Issuers, upon written notice to the Holders, shall be permitted to suspend the
effectiveness of a Registration Statement covering the Registrable Securities
for any bona fide reason whatsoever for up to 45 consecutive days (the "Deferral
Period") in any 90-day period without paying Liquidated Damages; provided,
however, that in the event the reason relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which the
Issuers determine in good faith would be reasonably likely to impede their
ability to consummate such transaction, the Issuers may extend a Deferral Period
from 45 days to 60 days without paying Liquidated Damages; provided further,
however, that Deferral Periods may not total more than 90 days in the aggregate
in any twelve-month period without paying Liquidated Damages. The Issuers shall
not be required to specify in the written notice to the Holders the nature of
the event giving rise to the Deferral Period.
(c) So long as Securities remain outstanding, the Issuers
shall notify the Trustee within five Business Days after each and every date on
which an event occurs in respect of which Liquidated Damages are required to be
paid. Any amounts of Liquidated Damages due pursuant to clause (a)(i), (a)(ii)
or (a)(iii) of this Section 3 will be payable at a rate of 0.50% per annum on
the Amount of Registrable Securities in cash semi-annually on each
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November 25 and May 25 (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 Securities that are Registrable Securities, and to Persons that
are registered Holders on November 1 or May 1 immediately prior to a Damages
Payment Date with respect to Underlying Shares that are Registrable Securities,
provided that any Liquidated Damages accrued with respect to any Securities or
portion thereof redeemed by the Company on a redemption date or converted into
Underlying Shares on a conversion date prior to the Damages Payment Date, shall,
in any such event, be paid instead to the Holder who submitted such Securities
or portion thereof for redemption or conversion on the applicable redemption
date or conversion date, as the case may be, on such date (or promptly following
the conversion date, in the case of conversion). The amount of Liquidated
Damages for Registrable Securities will be determined by multiplying the
applicable rate of Liquidated Damages by the Amount of Registrable Securities
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.
4. Registration Procedures.
In connection with the filing of any Registration Statement pursuant to
Section 2 hereof, the Issuers shall effect such registration to permit the
resale 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 Issuers hereunder the Issuers shall:
(a) Prepare and file with the SEC, on or prior to the Filing
Date, a Registration Statement or Registration Statements as prescribed
by Section 2 hereof, and use all reasonable efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration (unless replaced
by a Subsequent Shelf Registration Statement), as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period; cause the related Prospectus to be supplemented
by any prospectus supplement required by applicable law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all Registrable
Securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented. The Issuers shall be deemed not to
have used all reasonable efforts to keep a Registration Statement
effective during the Effectiveness Period if it voluntarily takes any
action that would result in Selling Holders of the Registrable
Securities covered thereby not being able to sell such Registrable
Securities during that period unless such action
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is required by applicable law or unless the Issuers comply with this
Agreement, including without limitation the provisions of Section 4(i)
hereof.
(c) Notify the Selling Holders and Designated Counsel, if any,
promptly (but in any event within two Business Days), (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 Issuers,
one conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules and, if
requested, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) of the happening
of any event, the existence of any condition or any information
becoming known 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 (iv) of the Issuers' determination
that a post-effective amendment to a Registration Statement would be
appropriate; provided that with respect to clauses (iii) and (iv)
above, such notice shall not be required during a Deferral Period.
(d) Use all reasonable 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 and, if any
such order is issued, to use all reasonable efforts to obtain the
withdrawal of any such order as soon as possible, and provide, as
promptly as practicable, notice to the Selling Holders of the
withdrawal of any such order.
(e) Furnish to each Selling Holder and Designated Counsel, if
any, at the sole expense of the Issuers, 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.
(f) Deliver to each Selling Holder and Designated Counsel, if
any, at the sole expense of the Issuers, as many copies of the
Prospectus and each amendment or supplement thereto and any documents
incorporated by reference
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therein as such Persons may reasonably request; and, subject to Section
4A(a) and (c) hereof, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the
Selling Holders of Registrable Securities and dealers, if any, in
connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto.
(g) Cause the Issuers' counsel to perform Blue Sky law
investigations and file registrations and qualifications required to be
filed in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities or offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any Selling Holder
reasonably requests, 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 under Blue Sky laws to
enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided,
however, that the Issuers shall not be required to (i) qualify
generally to do business in any jurisdiction where they are not then so
qualified, (ii) take any action that would subject them to general
service of process in any such jurisdiction where they are not then so
subject or (iii) subject themselves to taxation in any such
jurisdiction where they are not then so subject.
(h) Cooperate with the Selling Holders and their respective
counsel to facilitate the timely preparation and delivery of
certificates representing shares of Registrable Securities to be sold,
which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with The Depository Trust Company; and
enable such shares of Registrable Securities to be in such
denominations and registered in such names as the Selling Holders may
reasonably request.
(i) Upon the occurrence of any event contemplated by Section
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable
prepare and (subject to Section 4(a) hereof) file with the SEC, at the
sole expense of the Issuers, 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 Securities being sold
thereunder, 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.
(j) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the
Trustee with certificates for the Registrable Securities in a form
eligible for deposit with The Depository Trust Company and (ii) provide
a CUSIP number for the Registrable Securities.
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(k) During the Effectiveness Period, make available at
reasonable times for inspection by one or more representatives of the
Selling Holders, designated in writing by Holders of a majority in
Amount of Registrable Securities to be included in such Registration
Statement of such Registrable Securities being sold, and any attorney
or accountant retained by any such Selling Holders (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, at such time or times as shall be mutually convenient
for the Issuers and the Inspectors as a group, all financial and other
records, pertinent corporate documents and instruments of the Company
and its subsidiaries (collectively, the "Records") to the extent
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; provided, however, that the Issuers shall have
no obligation to provide any such information prior to the execution by
the party receiving such information of a confidentiality agreement in
a form reasonably acceptable to the Company. Records that the Company
determines, in good faith, to be confidential and any Records that it
notifies the Inspectors are confidential shall not be disclosed by any
Inspector unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or material omission in such
Registration Statement, (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, in the opinion
of counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding, directly involving or
potentially involving such Inspector and arising out of, based upon,
relating to, or involving this Agreement or any transactions
contemplated hereby or arising hereunder or (iv) the information in
such Records has been made generally available to the public other than
through the acts or indirect acts of such Inspector; provided, however,
that prior notice shall be provided as soon as practicable to the
Company of the potential disclosure of any information by such
Inspector pursuant to clauses (ii) or (iii) of this sentence to permit
the Company to obtain a protective order (or waive the provisions of
this paragraph (k)).
(l) Provide (i) Designated Counsel, if any, (ii) the sales or
placement agent, if any, relating to such Registration Statement, and
(iii) one counsel for such agents, reasonable opportunity to
participate in the preparation of such Registration Statement, each
prospectus included therein or filed with the SEC, and each amendment
or supplement thereto.
(m) During the Effectiveness Period, comply with all
applicable rules and regulations of the SEC and make generally
available to its security holders earning statements (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act).
(n) Cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
relating to the Registrable Securities;
-11-
in connection therewith, cooperate with the Trustee and, if necessary,
the Holders of the Registrable Securities and their respective counsel,
to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use all reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes and
all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner.
(o) Use all reasonable efforts to cause the Registrable
Securities covered by any Shelf Registration Statement to be registered
with or approved by such other governmental agencies or authorities as
may be reasonably necessary to enable the Selling Holder or Holders
thereof to consummate the disposition of such Registrable Securities,
except as may be required solely as a consequence of the nature of such
selling Holder's business, in which case the Issuers will cooperate in
all reasonable respects with the filing of such Registration Statement
and the granting of such approvals.
(p) If requested by Designated Counsel, if any, or the Holders
of the majority in Amount of Registrable Securities (i) promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the Designated Counsel, if any, or such Holders
reasonably determine is necessary to be included therein and (ii) make
all required filings of such prospectus supplement or such
post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment.
(q) Use all reasonable efforts to take all other steps
necessary or advisable to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby.
4A. Holders' Obligations (a) Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Selling Holder agrees
promptly to furnish to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such
Selling Holder not misleading and any other information regarding such Selling
Holder and the distribution of such Registrable Securities as the Company may
from time to time reasonably request. Any sale of any Registrable Securities by
any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary
-12-
to make the statements in such Prospectus, in the light of the circumstances
under which they were made, not misleading.
(b) The Issuers may require each Selling Holder of
Registrable Securities as to which any Shelf Registration is being effected to
furnish to the Company such additional information regarding such Holder and its
plan of distribution of such Registrable Securities as the Company may, from
time to time, reasonably request to the extent necessary or advisable to comply
with the Securities Act. The Issuers may exclude from such Shelf Registration
the Registrable Securities of any Selling Holder if such Holder fails to furnish
such additional information within 15 Business Days after receiving such
request. Each Selling Holder as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed so that the information previously furnished to the Company by such
Holder is not materially misleading and does not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made.
(c) Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon actual receipt of any
notice from the Company of the Company suspending the effectiveness of the
Registration Statement pursuant to Section 3(b) hereof, or upon the happening of
any event of the kind described in Section 4(c)(ii), 4(c)(iii) or 4(c)(iv)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(i) hereof, or until it is advised in writing by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. Each Holder agrees to
keep any such notice confidential.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers,
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
Securities and determination of the eligibility of the Registrable Securities
for investment under the laws of such jurisdictions as provided in Section 4(g)
hereof), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the Holders of the majority in Amount of
Registrable Securities included in any Registration Statement, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuers, (v) Securities Act liability insurance, if the Issuers desire such
insurance, (vi) fees and expenses of all other Persons retained by the Issuers,
(vii) internal expenses of the Issuers (including, without limitation, all
salaries and expenses of officers and employees of the Issuers performing legal
or accounting duties), (viii) the expense of any annual audit, (ix) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (x) the expenses
relating to printing, word processing and distributing all Registration
Statements and any other documents
-13-
necessary in order to comply with this Agreement. Notwithstanding anything in
this Agreement to the contrary, each Holder shall pay all brokerage commissions
with respect to any Registrable Securities sold by it and, except as set forth
in Section 5(b) below the Issuers shall not be responsible for the fees and
expenses of any counsel, accountant or advisor for the Holders.
(b) The Issuers shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees,
charges and disbursements, of Designated Counsel in an amount not to exceed
$25,000.
6. Indemnification.
Each of the Issuers, jointly and severally, agrees to indemnify and
hold harmless (a) each Holder (which, for the absence of doubt, for purposes of
this Section 6 shall include the Initial Purchasers), (b) each Person, if any,
who controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) any Holder (any of the Persons referred to in
this clause (b) being hereinafter referred to as a "Controlling Person"), (c)
the respective officers, directors, partners, employees, representatives and
agents of any Holder (including any predecessor holder) or any Controlling
Person (any person referred to in clause (a), (b) or (c) may hereinafter be
referred to as an "Indemnified Holder"), against any losses, claims, damages or
liabilities to which such Indemnified Holder may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement or Prospectus, or any amendment or
supplement thereto or any related prospectus or (ii) the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in the light of the
circumstances in which they were made; provided, however, that the Issuers will
not be liable under this paragraph, (x) to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in any such
Registration Statement or Prospectus, or any amendment or supplement thereto or
any related prospectus in reliance upon and in conformity with written
information relating to any Holder furnished to the Company by or on behalf of
such Holder specifically for use therein or (y) with respect to any untrue
statement or alleged untrue statement, or omission or alleged omission made in
any former prospectus if the person asserting any such loss, claim, damage or
liability who purchased Registrable Securities which are the subject thereof did
not receive a copy of the Prospectus (as then amended or supplemented if the
Issuers shall have furnished such Indemnified Holder with such amendment or
supplement thereto on a timely basis) at or prior to the written confirmation of
the sale of such Registrable Securities to such person and, in any case where
such delivery is required by applicable law and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact made in such
former prospectus was corrected in the Prospectus (as then amended or
supplemented if the Issuers shall have furnished such Indemnified Holder with
such amendment or supplement thereto on a timely basis). The Issuers shall
notify such Indemnified Holder promptly of the institution, threat or assertion
of any claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this Agreement that
involves the Issuers or such Indemnified Holder and such Indemnified Holder
shall notify the Issuers if they receive actual written notice of any of the
foregoing.
-14-
The Issuers agree to reimburse each Indemnified Holder upon demand for
any legal or other out-of-pocket expenses reasonably incurred by such
Indemnified Holder in connection with investigating or defending any such loss,
claim, damage or liability, any action or proceeding or in responding to a
subpoena or governmental inquiry related to the offering of the Registrable
Securities, whether or not such Indemnified Holder is a party to any action or
proceeding; provided, however, that the Issuers will not be liable under this
paragraph, (x) to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement,
or omission or alleged omission made in any such Registration Statement or
Prospectus, or any amendment or supplement thereto or any related prospectus in
reliance upon and in conformity with written information relating to any Holder
furnished to the Company by or on behalf of such Holder specifically for use
therein or (y) with respect to any untrue statement or alleged untrue statement,
or omission or alleged omission made in any former prospectus if the person
asserting any such loss, claim, damage or liability who purchased Registrable
Securities which are the subject thereof did not receive a copy of the
Prospectus (as then amended or supplemented if the Issuers shall have furnished
such Indemnified Holder with such amendment or supplement thereto on a timely
basis) at or prior to the written confirmation of the sale of such Registrable
Securities to such person and, in any case where such delivery is required by
applicable law and the untrue statement or alleged untrue statement or omission
or alleged omission of a material fact made in such former prospectus was
corrected in the Prospectus (as then amended or supplemented if the Issuers
shall have furnished such Indemnified Holder with such amendment or supplement
thereto on a timely basis). In the event that it is finally judicially
determined that an Indemnified Holder was not entitled to receive payments for
legal and other expenses pursuant to this Section 6, such Indemnified Holder
will promptly return all sums that had been advanced pursuant hereto.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Issuers, their directors and officers and each Person who controls
the Issuers (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) to the same extent as the indemnity provided in
the first paragraph of this Section 6 from the Issuers to each Holder, but only
with reference to such losses, claims, damages or liabilities which 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 a Holder
furnished to the Company in writing by such Holder expressly for use in any
Registration Statement or Prospectus, or any amendment or supplement thereto or
any related preliminary prospectus. The liability of any Holder under this
paragraph shall in no event exceed the proceeds received by such Holder from
sales of Registrable Securities giving rise to such obligation.
In case any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
first and third paragraphs of this Section 6, such Person (the "Indemnified
Person") shall promptly notify the Person or Persons against whom such indemnity
may be sought (each an "Indemnifying Person") in writing. No indemnification
provided for in the first or third paragraphs of this Section 6 shall be
available to any Person who shall have failed to give notice as provided in this
paragraph if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was materially prejudiced
by the failure to give such notice. Nevertheless, the failure to give such
notice shall not relieve the Indemnifying Person or Persons from any liability
which it or
-15-
they may have to the Indemnified Person for contribution or otherwise than on
account of the provisions of the first and third paragraphs of this Section 6.
In case any such proceeding shall be brought against any Indemnified Person and
it shall notify the Indemnifying Person of the commencement thereof, the
Indemnifying Person shall be entitled to participate therein and, to the extent
that it shall wish, jointly with any other Indemnifying Person similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such Indemnified Person and shall pay as incurred (or within 30 days of
presentation) the fees, charges and disbursements of such counsel related to
such proceeding. In any such proceeding, any Indemnified Person shall have the
right to retain its own counsel at its own expense. Notwithstanding the
foregoing, the Indemnifying Person shall pay as incurred (or within 30 days of
presentation) the fees and expenses of the counsel retained by the Indemnified
Person in the event (i) the Indemnifying Person and the Indemnified Person shall
have mutually agreed to the retention of such counsel, (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them or (iii) the Indemnifying Person shall have
failed to assume the defense and employ counsel reasonably acceptable to the
Indemnified Person within a reasonable period of time after notice of
commencement of the action. It is understood that the Indemnifying Person shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such Indemnified Persons. Such firm shall be designated in
writing by Holders of a majority in Amount of Registrable Securities in the case
of parties indemnified pursuant to the first paragraph of this Section 6 and by
the Issuers in the case of parties indemnified pursuant to the third paragraph
of this Section 6. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify the Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. In addition, the
Indemnifying Person will not, without the prior written consent of the
Indemnified Person, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any Indemnified Person
is an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
Indemnified Person from all liability arising out of such claim, action or
proceeding.
To the extent the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an Indemnified Person under the
first or third paragraph of this Section 6 in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, except by reason of the exceptions set forth in the first or third
paragraphs of this Section 6 or the failure of the Indemnified Person to give
notice as required in the fourth paragraph of this Section 6, then each
Indemnifying Person shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying Person
on the one hand and the Indemnified Person on the other hand from the offering
of the Notes pursuant to the Purchase Agreement and the Registrable Securities
pursuant to any Shelf Registration. If, however, the allocation provided by the
immediately preceding sentence is not permitted by applicable law then each
Indemnifying Person shall contribute to such amount paid or payable by such
Indemnified
-16-
Person in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Indemnifying Person on the one hand
and the Indemnified Person on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Issuers shall be
deemed to be equal to the total net proceeds (before deducting expenses)
received by the Company under the Purchase Agreement from the offering and sale
of the Registrable Securities giving rise to such obligations. The relative
benefits received by any Holder shall be deemed to be equal to the value of
receiving registration rights for the Registrable Securities under this
Agreement. The relative fault 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 Issuers on the one hand or such Indemnified Holder on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Issuers and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to the immediately preceding paragraph of
this Section 6 were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
Indemnified Person as a result of the losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to in the immediately
preceding paragraph shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Person in connection with investigating
or defending any such action or claim or enforcing any rights hereunder.
Notwithstanding the provisions of this paragraph and the immediately preceding
paragraph of this Section 6, (i) in no event shall any Holder be required to
contribute any amount in excess of the amount by which the gross proceeds
received by such Holder from the offering or sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages which
such Holder has otherwise been required to pay by reason of such 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 Securities Act) or gross negligence shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation or gross
negligence, as the case may be.
Except as otherwise provided in this Section 6, any losses, claims,
damages, liabilities or expenses for which an Indemnified Person is entitled to
indemnification or contribution under this Section 6 shall be paid by the
Indemnifying Person to the Indemnified Person as such losses, claims, damages,
liabilities or expenses are incurred (or within 30 days of presentation).
The remedies provided for in this Section 6 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 6
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 Holder or any Person controlling any Holder
-17-
or by or on behalf of any Issuer, its officers or directors or any other Person
controlling such Issuer and (iii) acceptance of and payment for any of the
Registrable Securities.
7. Rules 144 and 144A.
Each of the Issuers covenants and agrees that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
for so long as any Registrable Securities remain outstanding, if at any time
such Issuer is not required to file such reports, it will, upon the request of
any Holder or beneficial owner of Registrable Securities, make available such
information necessary to permit sales pursuant to Rule 144A under the Securities
Act. Each Issuer further covenants that, for so long as any Registrable
Securities remain outstanding, it will use all reasonable efforts to take such
further action as any Holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 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 SEC. The Issuers will
provide a copy of this Agreement to prospective purchasers of Registrable
Securities identified to the Company by the Initial Purchasers upon request.
Upon the request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations.
No Holder of Registrable Securities may participate in any Underwritten
Registration hereunder.
9. Miscellaneous.
(a) No Inconsistent Agreements. No Issuer has, as of the date
hereof, and no Issuer shall, after the date of this Agreement, enter into any
agreement with respect to any of its securities that is inconsistent with the
rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Adjustments Affecting Registrable Securities. No Issuer
shall, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities 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, otherwise than with the
prior written consent of the Company and the Holders of not less than the
majority in Amount of Registrable Securities; provided, however, that Section 6
and this Section 9(c) may not be amended, modified or supplemented without the
prior written consent of each Holder (including, in the case of an amendment,
modification or supplement of Section 6, any Person who was a Holder of
Registrable Securities
-18-
disposed of pursuant to any Registration Statement). 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
Securities 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 Securities may be given by Holders of at
least a majority in principal amount of the Registrable Securities being sold by
such Holders 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 facsimile:
(1) if to a Holder of Registrable Securities, at the
most current address of such Holder set forth on the records
of the registrar under the Indenture, in the case of Holders
of Notes, and the stock ledger of the Company, in the case of
Holders of common stock of the Company, unless, in either such
case, any Holder shall have provided notice information in a
Notice and Questionnaire or any amendment thereto, in which
case such information shall control.
(2) if to the Initial Purchasers:
c/o Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
(3) if to the Issuers:
Yellow Corporation
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Senior Vice President,
General Counsel and Secretary
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with copies to:
Fulbright & ▇▇▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; one Business Day
after being timely delivered to a next-day air courier; and when the addressor
receives facsimile confirmation, if sent by facsimile during normal business
hours, and otherwise on the next Business Day during normal business hours.
(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, including the Holders; 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 except to the extent such successor or assign holds Registrable
Securities.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, including
via facsimile, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
(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. EACH OF THE PARTIES HERETO AGREES TO SUBMIT
TO THE JURISDICTION OF THE FEDERAL AND
NEW YORK STATE COURTS SITTING IN
MANHATTAN,
NEW YORK CITY, THE STATE OF
NEW YORK, IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(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 Issuers or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage in Amount
of Registrable Securities is
-20-
required hereunder, Registrable Securities held by the Issuers or their
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 of Registrable
Securities are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(l) 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 Initial
Purchasers on the one hand and the Issuers 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.
[Signature page follows]
-21-
IN WITNESS WHEREOF, the parties have executed this
Registration Rights
Agreement as of the date first written above.
YELLOW CORPORATION
By:
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Name:
Title:
YELLOW DOT COM SUBSIDIARY, INC.
MERIDIAN IQ, LLC
YELLOW GPS, LLC
▇▇▇▇▇.▇▇▇ LINES, INC.
MEGASYS, INC.
By:
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Name:
Title:
YELLOW TRANSPORTATION, INC.
By:
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Name:
Title:
YELLOW TECHNOLOGIES, INC.
By:
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Name:
Title:
MISSION SUPPLY CO.
YELLOW REDEVELOPMENT CORP.
YELLOW RELOCATION SERVICES, INC.
By:
----------------------------------
Name:
Title:
-2-
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
DEUTSCHE BANK SECURITIES INC., as
representative of the Initial Purchasers
By:
---------------------------------------------
Name:
Title:
By:
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Name:
Title:
-3-