IKON Office Solutions, Inc. $150,000,000 Senior Unsecured Floating Rate Notes due 2012 REGISTRATION RIGHTS AGREEMENT
IKON
Office Solutions,
Inc.
$150,000,000 Senior
Unsecured Floating Rate Notes due 2012
December 20,
2007
Wachovia
Capital Markets, LLC
One Wachovia Center
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Ladies
and Gentlemen:
IKON
Office Solutions, Inc., an Ohio
corporation (the “Company”), confirms its agreement with Wachovia Capital
Markets, LLC as the initial purchaser (the “Initial Purchaser”), on the
terms set forth herein.
This
agreement (the “Registration
Rights Agreement” or this “Agreement”) is being entered into in
connection with a certain purchase agreement, dated December 7, 2007, by and
between the Company and the Initial Purchaser (the “Purchase Agreement”),
which provides for the issuance and sale by the Company to the Initial Purchaser
of $150,000,000 aggregate principal amount of the Company’s Senior Unsecured
Floating Rate Notes due 2012 (the “Notes”). In order to induce the
Initial Purchaser to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement for the benefit
of the Initial Purchaser and its direct and indirect transferees. The parties
hereby agree as follows:
1. Definitions.
Capitalized terms used herein without definition shall have their respective
meanings set forth in the Purchase Agreement. As used in this Agreement, the
following capitalized defined terms shall have the following
meanings:
“Act”
means
the Securities
Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.
“Additional
Interest” has the
meaning set forth in Section 4 hereto.
“Affiliate”
means,
with
respect to any specified person, any other person that, directly or indirectly,
is in control of, is controlled by, or is under common control with, such
specified person. For purposes of this definition, control of a person means
the
power, direct or indirect, to direct or cause the direction of the management
and policies of such person whether by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Agreement”
has
the meaning
set forth in the preamble hereto.
“Business
Day” means any day
excluding Saturday, Sunday or any other day which is a legal holiday under
the
laws of New York, New York or is a day on which banking institutions therein
located are authorized or required by law or other governmental action to
close.
“Commission”
means
the
Securities and Exchange Commission.
“Consummate”
means,
with
respect to a Registered Exchange Offer, the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Registered Exchange Offer,
(b) the launching of the Registered Exchange Offer and the keeping of the
Registered Exchange Offer open for a period not less than the minimum period
required pursuant to Section 2(c)(ii) hereof, (c) the Company’s
acceptance for exchange of all Transfer Restricted Notes duly tendered and
not
validly withdrawn pursuant to the Registered Exchange Offer and (d) the
delivery of Exchange Notes by the Company to the registrar under the Indenture
in the same aggregate principal amount as the aggregate principal amount of
Transfer Restricted Notes duly tendered and not validly withdrawn by Holders
thereof pursuant to the Registered Exchange Offer and the delivery of such
Exchange Notes to such Holders. The term “Consummation” has a meaning
correlative to the foregoing.
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the Commission promulgated thereunder.
“Exchange
Notes” means debt
securities of the Company, substantially identical in all material respects
to
the Notes other than issue date (except that the Additional Interest provisions
and the transfer restrictions pertaining to the Notes will be modified or
eliminated, as appropriate), to be issued under the Indenture in connection
with
the Registered Exchange Offer.
“Exchange
Offer Registration
Period” means the 180-day period following the Consummation of the
Registered Exchange Offer, exclusive of any period during which any stop order
shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement following consummation or during which the Company has
suspended the use of the Prospectus contained therein pursuant to Section 3(d)
following consummation; provided, however, that in the event that
(i) all resales of Exchange Notes (including, subject to the time periods
set forth herein, any resales by Participating Broker-Dealers) covered by such
Exchange Offer Registration Statement have been made or (ii) all such
Exchange Notes cease to be Transfer Restricted Notes, the Exchange Offer
Registration Statement need not thereafter remain effective for such
period.
“Exchange
Offer Registration
Statement” means a registration statement of the Company on an appropriate
form under the Act with respect to the Registered Exchange Offer, all amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference
therein.
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“Filing
Date” has the meaning
set forth in Section 2 hereto.
“Holder”
means
any holder
from time to time of Transfer Restricted Notes or Exchange Notes (including
the
Initial Purchaser).
“Indenture”
means
the
indenture relating to the Notes and the Exchange Notes, dated as of December
20,
2007, between the Company and The Bank of New York, as trustee, as the same
may
be amended, supplemented, waived or otherwise modified from time to time in
accordance with the terms thereof.
“Initial
Purchaser” has the
meaning set forth in the preamble hereto.
“Issue
Date” means December
20, 2007.
“Issuer
Free Writing
Prospectus” has the meaning set forth in Rule 433(k) of the
Act.
“Losses”
has
the meaning set
forth in Section 8(d) hereto.
“Majority
Holders” means the
Holders of a majority of the aggregate principal amount of Transfer Restricted
Notes registered under a Registration Statement.
“Managing
Underwriters” means
the investment banker or investment bankers and manager or managers that shall
administer an underwritten offering under a Shelf Registration
Statement.
“Notes”
has
the meaning set
forth in the preamble hereto.
“Participating
Broker-Dealer”
means any Holder (which may include the Initial Purchaser) that is a
broker-dealer electing to exchange Notes acquired for its own account as a
result of market-making activities or other trading activities for Exchange
Notes.
“Private
Exchange Notes” has
the meaning set forth in Section 2(f) hereof.
“Prospectus”
means
the
prospectus included in any Registration Statement (including a prospectus that
discloses information previously omitted from a prospectus filed as part of
an
effective registration statement in reliance upon Rule 430A under the Act
or any similar rule that may be adopted by the Commission), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Transfer Restricted Notes covered by such
Registration Statement, and all amendments and supplements to the
Prospectus.
“Purchase
Agreement” has the
meaning set forth in the preamble hereto.
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“Registered
Exchange Offer”
means the proposed offer to the Holders to issue and deliver to such Holders,
in
exchange for the Notes, a like aggregate principal amount of Exchange
Notes.
“Registration
Statement”
means any Exchange Offer Registration Statement or Shelf Registration Statement
that covers any of the Transfer Restricted Notes pursuant to the provisions
of
this Agreement, amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto, and all material incorporated by
reference therein.
“Shelf
Registration” means a
registration of Transfer Restricted Notes with the Commission effected pursuant
to Section 3 hereof.
“Shelf
Registration Period”
has the meaning set forth in Section 3(b) hereof.
“Shelf
Registration
Statement” means a “shelf” registration statement of the Company filed
pursuant to the provisions of Section 3 hereof, which covers some or all of
the Transfer Restricted Notes, as applicable, on an appropriate form under
Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, and which may be in the format of an amendment to the Exchange
Offer
Registration Statement if permitted by the Commission, all amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
“Transfer
Restricted Notes”
means each Note upon original issuance thereof and at all times subsequent
thereto, each Private Exchange Note as to which clause (iii) or (iv) of the
first paragraph of Section 3 applies upon original issuance and at all
times subsequent thereto, until in the case of any such Note or Exchange Note,
as the case may be, the earliest to occur of (i) the date on which such
Note has been exchanged by a person other than a Participating Broker-Dealer
for
an Exchange Note (other than with respect to an Exchange Note as to which clause
(iii) or (iv) of the first paragraph of Section 3 applies), (ii) with
respect to Exchange Notes received by Participating Broker-Dealers in the
Registered Exchange Offer, the date on which such Exchange Note has been sold
by
such Participating Broker-Dealer by means of the Prospectus contained in the
Exchange Offer Registration Statement, (iii) a Shelf Registration Statement
covering such Note or Exchange Note, as the case may be, has been declared
effective by the Commission and such Note or Exchange Note, as the case may
be,
has been disposed of in accordance with such effective Shelf Registration
Statement, (iv) the date on which such Note or Exchange Note, as the case
may be, can be sold without any limitations under clauses (c), (e), (f) or
(h) of Rule 144 under the Act or any similar rule that may be adopted
by the Commission, (v) the date on which such Note or Exchange Note is
transferred to the public pursuant to Rule 144 under the Act or
(vi) such Note or Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
“Trust
Indenture Act” means
the Trust Indenture Act of 1939, as amended.
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“Trustee”
means
the trustee
with respect to the Notes and Exchange Notes under the Indenture.
2. Registered
Exchange
Offer; Resales of Exchange Notes by Participating Broker-Dealers; Private
Exchange. (a) The Company shall prepare and, not later than
110 days from the Issue Date (or, if such 110th day is
not a
Business Day, by the first Business Day thereafter), shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer (the date of such filing hereinafter referred to
as
the “Filing Date”). The Company shall use its reasonable best efforts
(i) to cause the Exchange Offer Registration Statement to be declared
effective under the Act within 200 days from the Issue Date (or, if such
200th day is
not a Business Day, by the first Business Day thereafter) and (ii) to
Consummate the Registered Exchange Offer within 230 days from the Issue
Date (or, if such 230th day is
not a
Business Day, by the first Business Day thereafter).
(b) The
objective of the
Registered Exchange Offer is to enable each Holder electing to exchange Transfer
Restricted Notes for Exchange Notes (assuming that such Holder (x) is not
an “affiliate” of the Company within the meaning of the Act, (y) is not a
broker-dealer that acquired the Transfer Restricted Notes in a transaction
other
than as a part of its market-making or other trading activities and (z) if
such Holder is not a broker-dealer, acquires the Exchange Notes in the ordinary
course of such Holder’s business, is not participating in the distribution of
the Exchange Notes and has no arrangements or intentions with any person to
make
a distribution of the Exchange Notes) to resell such Exchange Notes from and
after their receipt without any limitations or restrictions under the Act.
Each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that at the time of the Consummation of the Registered
Exchange Offer each of the items listed in subsections (x), (y) and
(z) of this Section 2(b) is true.
(c) In
connection with the
Registered Exchange Offer, the Company shall:
(i) mail
to each Holder a copy
of the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related
documents;
(ii) keep
the Registered
Exchange Offer open for acceptance for not less than 30 Business Days (or longer
if required by applicable law) after the date notice thereof is mailed to
Holders;
(iii) permit
Holders to
withdraw tendered Notes at any time prior to 5:00 p.m. New York City time on
the
last Business Day on which the Registered Exchange Offer shall remain
open;
(iv) utilize
the services of a
depositary for the Registered Exchange Offer with an address in the Borough
of
Manhattan, The City of New York; and
(v) comply
in all material
respects with all applicable laws relating to the Registered Exchange
Offer.
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(d) As
soon as practicable
after the Consummation of the Registered Exchange Offer, the Company
shall:
(i) accept
for exchange all the
Notes validly tendered and not withdrawn pursuant to the Registered Exchange
Offer;
(ii) deliver
to the Trustee for
cancellation all of the Notes so accepted for exchange; and
(iii) cause
the Trustee
promptly to authenticate and deliver to each Holder Exchange Notes equal in
principal amount to the Transfer Restricted Notes of such Holder so accepted
for
exchange.
(e) The
Initial Purchaser and
the Company acknowledge that, pursuant to interpretations by the staff of the
Commission of Section 5 of the Act, and in the absence of an applicable
exemption therefrom, each Participating Broker-Dealer is required to deliver
a
Prospectus in connection with a sale of any Exchange Notes received by such
Participating Broker-Dealer pursuant to the Registered Exchange Offer in
exchange for Transfer Restricted Notes acquired for its own account as a result
of market-making activities or other trading activities. Accordingly, the
Company will allow Participating Broker-Dealers and other persons, if any,
with
similar prospectus delivery requirements to use the Prospectus contained in
the
Exchange Offer Registration Statement during the Exchange Offer Registration
Period in connection with the resale of such Exchange Notes and
shall:
(i) include
the information set
forth in (a) Annex A hereto on the cover of the Prospectus forming a part
of the Exchange Offer Registration Statement; (b) Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting
forth
details of the Registered Exchange Offer; (c) Annex C hereto in the plan of
distribution section of the Prospectus forming a part of the Exchange Offer
Registration Statement, and (d) Annex D hereto in the letter of transmittal
delivered pursuant to the Registered Exchange Offer; and
(ii) use
reasonable best
efforts to keep the Exchange Offer Registration Statement continuously effective
under the Act during the Exchange Offer Registration Period for delivery of
the
Prospectus included therein by Participating Broker-Dealers in connection with
sales of Exchange Notes received pursuant to the Registered Exchange Offer,
as
contemplated by Section 5(h) below.
(f) In
the event that the
Initial Purchaser determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Transfer Restricted
Notes constituting any portion of an unsold allotment, upon the effectiveness
of
the Shelf Registration Statement as contemplated by Section 3 hereof and at
the request of the Initial Purchaser, the Company shall issue and deliver to
the
Initial Purchaser, or to the party purchasing Transfer Restricted Notes
registered under the Shelf Registration Statement from the Initial Purchaser,
in
exchange for such Transfer Restricted Notes, a like principal amount of Exchange
Notes to the extent permitted by applicable law (the “Private Exchange
Notes”). The Company shall use their reasonable best efforts to cause the
CUSIP Service Bureau to issue the same CUSIP number for such Private Exchange
Notes as for Exchange Notes issued pursuant to the Registered Exchange
Offer.
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3. Shelf
Registration.
If (i) the Company is not permitted to file the Exchange Offer Registration
Statement or to Consummate the Registered Exchange Offer because the Registered
Exchange Offer is not permitted by applicable law or Commission policy,
(ii) for any other reason the Registered Exchange Offer is not Consummated
within 230 days (or if such 230th day is
not a
Business Day, by the first Business Day thereafter) of the Issue Date (provided
that the Company’s obligation pursuant to this clause (ii) shall cease if
the Exchange Offer is subsequently Consummated), (iii) the Initial
Purchaser so requests with respect to Notes acquired by it directly from the
Company, which have not been resold on or prior to the 20th day (or if such
20th
day is not a Business Day, by the first Business Day thereafter) following
the
Consummation of the Registered Exchange Offer, (iv) any Holder notifies the
Company on or prior to the 20th day (or if such 20th day is not a Business
Day,
by the first Business Day thereafter) following the Consummation of the
Registered Exchange Offer that (A) such Holder is not eligible to
participate in the Registered Exchange Offer, due to applicable law or
Commission policy, (B) the Exchange Notes such Holder would receive would
not be freely tradable, (C) such Holder is a Participating Broker-Dealer
that cannot publicly resell the Exchange Notes that it acquires in the
Registered Exchange Offer without delivering a Prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for resales following the completion of the Registered Exchange Offer,
or (D) the Holder is a broker-dealer and owns Notes it has not exchanged
and that it acquired directly from the Company or one of its Affiliates, or
(v) in the case where the Initial Purchaser participates in the Registered
Exchange Offer or acquires Private Exchange Notes pursuant to Section 2(f)
hereof, the Initial Purchaser does not receive freely tradable Exchange Notes
in
exchange for Notes constituting any portion of an unsold allotment and the
Initial Purchaser notifies the Company on or prior to the 20th day following
the
Consummation of the Registered Exchange Offer (it being understood that, for
purposes of this Section 3, (x) the requirement that the Initial
Purchaser delivers a Prospectus containing the information required by Items
507
and/or 508 of Regulation S-K under the Act in connection with sales of
Exchange Notes acquired in exchange for such Transfer Restricted Notes shall
result in such Exchange Notes being not “freely tradable” and (y) the
requirement that a Participating Broker-Dealer deliver a Prospectus in
connection with sales of Exchange Notes acquired in the Registered Exchange
Offer in exchange for Transfer Restricted Notes acquired as a result of
market-making activities or other trading activities shall result in such
Exchange Notes being not “freely tradable”), the following provisions shall
apply:
(a) The
Company shall use its
reasonable best efforts to prepare and file with the Commission a Shelf
Registration Statement prior to the 45th day (or if such 45th day is not a
Business Day, by the first Business Day thereafter) following the earliest
to
occur of (i) the date on which the Company determines that it is not
permitted to file the Exchange Offer Registration Statement or to Consummate
the
Registered Exchange Offer; (ii) 45 days (or if such 45th day is not a
Business Day, by the first Business Day thereafter) after the Exchange Offer
Registration Statement has been declared effective if the Registered Exchange
Offer has not been Consummated by such date and (iii) the date notice is given
pursuant to clause (iii), (iv) or (v) of the first paragraph of this
Section 3, and shall use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission within
90 days after such filing (or if such 90th day is not a Business Day, by
the first Business Day thereafter). With respect to Exchange Notes received
by
the Initial Purchaser in exchange for Notes constituting any portion of an
unsold allotment, the Company may, if permitted by current interpretations
by
the Commission’s staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by
Regulation S-K Items 507 and/or 508, as applicable, in satisfaction of its
obligations under this paragraph (b) with respect thereto, and any such Exchange
Offer Registration Statement, as so amended, shall be referred to herein as,
and
governed by the provisions herein applicable to, a Shelf Registration
Statement.
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(b) The
Company shall use its
reasonable best efforts to keep such Shelf Registration Statement continuously
effective (subject to Section 3(c)) in order to permit the Prospectus
forming a part thereof to be usable by Holders until the earliest of
(i) such time as the Notes or Exchange Notes covered by the Shelf
Registration Statement cease to be Transfer Restricted Notes and (ii) the
earlier of (A) two years from the date the Shelf Registration Statement has
been
declared effective exclusive of any period during which any stop order shall
be
in effect suspending the effectiveness of the Shelf Registration Statement
or
during which the Company has suspended the use of the Prospectus contained
therein pursuant to Section 3(c) and (B) such lesser period after which all
of
the Notes may be sold pursuant to Rule 144(k) under the Act, as the same may
be
amended from time to time (in any such case, such period being called the
“Shelf Registration Period”). The Company shall be deemed not to have
used its reasonable best efforts to keep the Shelf Registration Statement
effective during the Shelf Registration Period if it voluntarily takes any
action that would result in Holders of Transfer Restricted Notes covered thereby
not being able to offer and sell such notes during that period, unless such
action is (x) required by applicable law or (y) pursuant to Section
3(c) hereof, and, in either case, so long as the Company promptly thereafter
complies with the requirements of Section 5(k) hereof, if
applicable.
(c) The
Company may suspend the
use of the Prospectus for a period not to exceed 30 days in any six-month
period or an aggregate of 60 days in any twelve-month period for valid
business reasons (not including avoidance of its obligations hereunder) or
to
avoid premature public disclosure of a pending corporate transaction, including
pending acquisitions or divestitures of assets, mergers and combinations and
similar events; provided that (i) the Company promptly thereafter
complies with the requirements of Section 5(k) hereof, if applicable; and (ii)
the period during which the Registration Statement is required to be effective
and usable shall be extended by the number of days during which such
Registration Statement was not effective or usable pursuant to the foregoing
provisions.
(d) No
Holder of Transfer
Restricted Notes may include any of its Transfer Restricted Notes in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 10 days after receipt of a
request therefor, such information as the Company may reasonably request for
use
in connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. Each Holder of Transfer Restricted Notes as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
misleading.
(e) The
Company agrees that,
unless it obtains the prior consent of the Majority Holders that are registered
under any Shelf Registration Statement at such time or the consent of the
managing underwriter in connection with any underwritten offering of Exchange
Notes, and each Holder agrees that, unless it obtains the prior consent of
the
Company and any such underwriter, it will not make any offer relating to the
Transfer Restricted Notes that would constitute an Issuer Free Writing
Prospectus, or that would otherwise constitute a “free writing prospectus,” as
defined in Rule 405 under the Act, required to be filed with the
Commission. The Company covenants that any Issuer Free Writing
Prospectus will not include any information that conflicts with the information
contained in the Shelf Registration Statement or the Prospectus and, any Issuer
Free Writing Prospectus, when taken together with the information in the Shelf
Registration Statement and the Prospectus, will not include any untrue statement
of a material fact or omit to state any material fact necessary in order to
make
the statements therein, in light of the circumstances under which they were
made, misleading.
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4. Additional
Interest.
(a) The parties hereto agree that Holders of Transfer Restricted Notes will
suffer damages if the Company fails to perform its obligations under Section
2
or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages. Accordingly, in the event that (i) the applicable
Registration Statement is not filed with the Commission on or prior to the
date
specified herein for such filing, (ii) the applicable Registration
Statement has not been declared effective by the Commission on or prior to
the
date specified herein for such effectiveness after such obligation arises,
(iii) if the Registered Exchange Offer is required to be Consummated
hereunder, the Registered Exchange Offer has not been Consummated by the Company
within the time period set forth in Section 2(a) hereof, or (iv) prior to
the end of the Exchange Offer Registration Period or the Shelf Registration
Period, any Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, ceases to be effective or usable at any time
it
is required to be effective pursuant to this Agreement except as permitted
under
Section 3(c) hereto (each such event referred to in clauses (i) through
(iv), a “Registration Default”), then additional interest with respect to
the Transfer Restricted Notes (“Additional Interest”) will accrue with
respect to the first 90-day period immediately following the occurrence of
the
first Registration Default in an amount equal to 0.25% per annum per $1,000
principal amount of such Notes and will increase by an additional 0.25% per
annum per $1,000 principal amount of such Notes for each subsequent 90-day
period until all Registration Defaults have been cured, up to an aggregate
maximum amount of Additional Interest of 0.5% per annum per $1,000 principal
amount of Notes for all Registration Defaults. A Registration Default shall
be
cured on the date on which (1) in the case of clause (i) above, the
applicable Registration Statement is filed, (2) in the case of clause
(ii) above, the applicable Registration Statement is declared effective;
(3) in the case of clause (iii) above, the Registered Exchange Offer
is Consummated; and (4) in the case of clause (iv) above, the
Registration Statement which had ceased to remain effective or usable is
declared effective or usable. Following the cure of all Registration Defaults,
the accrual of Additional Interest with respect to such Registration Defaults
will cease and the interest rate on the Notes shall thereafter be the coupon
rate. Notwithstanding anything to the contrary in this Section 4(a), the
Company shall not be required to pay Additional Interest to a Holder of
Restricted Transfer Notes if such Holder failed to comply with its obligations
to make the representations set forth in the second sentence of Section 2(b)
or
provide the requested information pursuant to Section 3(d) or Section
5(o).
(b) The
Company shall notify
the Trustee and paying agent under the Indenture (or the trustee and paying
agent under such other indenture under which any Transfer Restricted Notes
are
issued) immediately upon the happening of each and every Registration Default.
The Company shall pay the Additional Interest due on the Transfer Restricted
Notes by depositing with the paying agent (which shall not be the Company for
these purposes) for the Transfer Restricted Notes, in trust, for the benefit
of
the Holders thereof, prior to 11:00 a.m. on the next interest payment date
specified in the Indenture (or such other indenture), sums sufficient to pay
the
Additional Interest then due. The Additional Interest due shall be payable
on
each interest payment date specified by the Indenture (or such other indenture)
to the record holders entitled to receive the interest payment to be made on
such date. Each obligation to pay Additional Interest shall be deemed to accrue
from and include the date of the first applicable Registration Default to,
but
excluding, the earlier of (i) the cure of all relevant Registration
Defaults and (ii) the relevant interest payment date.
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(c) The
parties hereto agree
that the Additional Interest provided for in this Section 4 constitutes a
reasonable estimate of the damages that will be suffered by Holders of Transfer
Restricted Notes by reason of the happening of any Registration Default and
are
intended to and shall constitute the sole remedy for damages that will be
suffered by the Holders of the Transfer Restricted Notes by reason of any of
the
failures listed in Section 4(a).
(d) All
Additional Interest
which has accrued pursuant to this Section 4 and which is outstanding with
respect to any Transfer Restricted Note shall remain outstanding until paid
in
full (notwithstanding termination of this Agreement, Consummation of the
Registered Exchange Offer or cessation of effectiveness of the Shelf
Registration Period).
5. Registration
Procedures. In connection with any Exchange Offer Registration Statement,
and, to the extent applicable, any Shelf Registration Statement, the following
provisions shall apply:
(a) The
Company shall furnish
to the Initial Purchaser, prior to the filing thereof with the Commission,
a
copy of any Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and shall
reflect in each such document, when so filed with the Commission, such comments
as the Initial Purchaser reasonably may propose.
(b) The
Company shall ensure
that:
(i) any
Registration Statement
and any amendment thereto and any Prospectus contained therein and any amendment
or supplement thereto complies in all material respects with the
Act;
(ii) any
Registration Statement
and any amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
and
(iii) any
Prospectus forming
part of any Registration Statement, including any amendment or supplement to
such Prospectus, does not include an untrue statement of a material fact or
omit
to state a material fact necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not
misleading;
provided
that the Company shall have no obligation to ensure the foregoing with respect
to information with respect to the Initial Purchaser, any Underwriter or any
Holder required to be included in any Registration Statement or Prospectus
pursuant to the Act or provided by the Initial Purchaser, any Holder or any
Underwriter specifically for inclusion in any Registration Statement or
Prospectus.
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(c) The
Company shall promptly
advise (which advice, other than in the case of clause (i), shall be accompanied
by an instruction to suspend the use of the Prospectus until the requisite
changes have been made) the Initial Purchaser and, in the case of a Shelf
Registration Statement, the Holders of Transfer Restricted Notes covered
thereby, and, in the case of an Exchange Offer Registration Statement, any
Participating Broker-Dealer that has provided in writing to the Company a
telephone or facsimile number and address for notices, and, if requested by
the
Initial Purchaser or any such Holder or Participating Broker-Dealer, confirm
such advice in writing:
(i) when
a Registration
Statement and any amendment thereto has been filed with the Commission and
when
the Registration Statement or any post effective amendment thereto has become
effective;
(ii) of
any request by the
Commission for amendments or supplements to the Registration Statement or the
Prospectus included therein or for additional information;
(iii) of
the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose;
(iv) of
the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Transfer Restricted Notes included in any Registration Statement for
sale
in any jurisdiction or the initiation or threatening of any proceeding for
such
purpose; and
(v) of
the happening of any
event that requires the making of any changes in the Registration Statement
or
the Prospectus so that, as of the date of the issuance of such advice, the
statements therein are not misleading and do not omit to state a material fact
required to be stated therein or necessary to make the statements therein (in
the case of the Prospectus, in light of the circumstances under which they
were
made) not misleading.
(d) The
Company shall use
reasonable best efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible
time.
(e) The
Company shall furnish
to each Holder of Transfer Restricted Notes included within the coverage of
any
Shelf Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those incorporated by reference).
11
(f) The
Company shall, during
the Shelf Registration Period, deliver to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including any preliminary Prospectus)
included in such Shelf Registration Statement and any amendment or supplement
thereto as such Holder may reasonably request; and the Company consents to
the
use of the Prospectus (including any preliminary prospectus) or any amendment
or
supplement thereto by each of the selling Holders of Transfer Restricted Notes
in connection with the offering and sale of the Transfer Restricted Notes
covered by the Prospectus or any amendment or supplement thereto.
(g) The
Company shall furnish
to each Participating Broker-Dealer that so requests, without charge, at least
one copy of the Exchange Offer Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, any documents
incorporated by reference therein and, if the Participating Broker-Dealer so
requests in writing, all exhibits thereto (including those incorporated by
reference).
(h) The
Company shall, during
the Exchange Offer Registration Period and pursuant to the requirements of
the
Act for the resale of the Exchange Notes during the period in which a prospectus
is required to be delivered under the Act (including any Commission no-action
letters relating to the Registered Exchange Offer), deliver to each
Participating Broker-Dealer, without charge, as many copies of the Prospectus
(including any preliminary Prospectus) included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Participating Broker-Dealer may reasonably request; and the Company consents
to
the use of the Prospectus (including any preliminary Prospectus) or any
amendment or supplement thereto by any such Participating Broker-Dealer in
connection with the offering and sale of the Exchange Notes, as provided in
Section 2(e) above.
(i) Prior
to the Registered
Exchange Offer or any other offering of Transfer Restricted Notes pursuant
to
any Registration Statement, the Company shall use reasonable best efforts to
register, qualify or cooperate with the Holders of Transfer Restricted Notes
included therein and their respective counsel in connection with the
registration or qualification of such Transfer Restricted Notes for offer and
sale under the securities or blue sky laws of such states as any such Holders
reasonably request in writing and do any and all other acts or things necessary
or advisable to enable the offer and sale in such jurisdictions of the Transfer
Restricted Notes covered by such Registration Statement;
provided, however, that the Company will not be
required to qualify generally to do business in any jurisdiction in which it
is
not then so qualified, to file any general consent to service of process or
to
take any action which would subject it to general service of process or to
taxation in any such jurisdiction where it is not then so subject.
12
(j) The
Company shall cooperate
with the Holders to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Notes to be sold pursuant to
any
Registration Statement free of any restrictive legends and in denominations
and
registered in such names as Holders may appropriately request prior to sales
of
Transfer Restricted Notes pursuant to such Registration Statement.
(k) Upon
the occurrence of any
event contemplated by Section 3(c) or paragraph (c) (v) of this Section 5,
the Company shall promptly prepare and file a post-effective amendment to any
Registration Statement or an amendment or supplement to the related Prospectus
or any other required document so that, as thereafter delivered to purchasers
of
the Transfer Restricted Notes included therein, the Prospectus will not include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(l) The
Company shall use its
reasonable best efforts to obtain a new CUSIP number (if not already obtained)
for the Transfer Restricted Notes or Exchange Notes registered under such
Registration Statement, as the case may be, not later than the effective date
of
such Registration Statement.
(m) The
Company shall use its
reasonable best efforts to comply with all applicable rules and regulations
of
the Commission and shall make generally available to the security holders as
soon as practicable after the effective date of the applicable Registration
Statement an earnings statement satisfying the provisions of Section 11(a)
of
the Act and Rule 158 promulgated thereunder.
(n) The
Company shall use
reasonable best efforts to cause the Indenture to be qualified under the Trust
Indenture Act in a timely manner.
(o) The
Company may require
each Holder of Transfer Restricted Notes to be sold pursuant to any Shelf
Registration Statement to furnish to the Company such information regarding
the
Holder and the distribution of such Transfer Restricted Notes as may, from
time
to time, be reasonably required by the Act, and the obligations of the Company
to any Holder hereunder shall be expressly conditioned on the compliance of
such
Holder with such request.
(p) The
Company shall, if
requested, promptly incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement (i) such information as the
Majority Holders or, if the Transfer Restricted Notes are being sold in an
underwritten offering, as the Managing Underwriters and the Majority Holders,
reasonably provide to the Company in writing for inclusion in the Shelf
Registration Statement, or Prospectus, and (ii) such information as a
Holder may reasonably provide from time to time to the Company in writing for
inclusion in a Prospectus or any Shelf Registration Statement, in the case
of
clause (i) or (ii) above, concerning such Holder and/or underwriter
and the distribution of such Holder’s Transfer Restricted Notes and, in either
case, shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after being notified in writing
of the matters to be incorporated in such Prospectus supplement or
post-effective amendment.
13
(q) In
the case of any Shelf
Registration Statement, the Company shall enter into such agreements (including
underwriting agreements) and take all other customary and appropriate actions
as
may be reasonably requested in order to expedite or facilitate the registration
or the disposition of any Transfer Restricted Notes, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than those
set forth in Section 8 (or such other provisions and procedures reasonably
acceptable to the Majority Holders and the Managing Underwriters, if any, with
respect to all parties to be indemnified pursuant to
Section 8).
(r) In
the case of any Shelf
Registration Statement, the Company shall:
(i) make
reasonably available
for inspection by the Holders of Transfer Restricted Notes to be registered
thereunder, any Managing Underwriter participating in any disposition pursuant
to such Shelf Registration Statement, and any attorney, accountant or other
agent retained by the Holders or any such Managing Underwriter, all relevant
financial and other records, pertinent corporate documents and properties of
the
Company and any of its subsidiaries reasonably requested by such
persons;
(ii) make
available for
inspection by the Holders or any such Managing Underwriter, and any attorney,
accountant or other agent retained by such Holder or Managing Underwriter
(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 Company 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”) 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 the Shelf Registration Statement. 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: (aa) the disclosure of such Records is necessary to avoid or
correct a material misstatement or material omission in the Shelf Registration
Statement or Prospectus; (bb) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction;
(cc) 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 (dd) the
information in such Records has been made generally available to the public
other than through the acts of such Inspector; provided 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 (bb) and (cc) of
this Section 5(r)(ii) to permit the Company to obtain a protective order
(or waive the provisions of this Section 5(r)(ii)). Each Inspector shall
take such actions as are reasonably necessary to protect the confidentiality
of
such information (if practicable) to the extent such actions are otherwise
not
inconsistent with, an impairment of or in derogation of the rights and interests
of the Holder or any Inspector, unless and until such information in such
Records has been made generally available to the public other than as a result
of a breach of this Agreement;
14
(iii) make
such representations
and warranties to the Holders of Transfer Restricted Notes registered thereunder
and the Managing Underwriters, if any, in form, substance and scope as are
customarily made by the Company to Managing Underwriters and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain
opinions of counsel
to the Company and updates thereof (which counsel and opinions, in form, scope
and substance, shall be reasonably satisfactory to the Managing Underwriters,
if
any) addressed to each selling Holder and the Managing Underwriters, if any,
covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested
by
such Holders and Managing Underwriters;
(v) obtain
“comfort”
letters
and
updates thereof 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
in
the Registration Statement), addressed to each selling Holder of the Transfer
Restricted Notes covered by such Shelf Registration Statement (provided such
Holder furnishes the accountants with such representations as the accountants
customarily require in similar situations) and the Managing Underwriters, if
any, in customary form and covering matters of the type customarily covered
in
“comfort” letters in connection with primary underwritten offerings;
and
(vi) deliver
such documents and
certificates as may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence compliance with
Section 5(i) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
The
foregoing actions set forth in this Section 5(r) shall be performed at
(i) the effectiveness of such Shelf Registration Statement and each
post-effective amendment thereto and (ii) each pricing and closing, as
applicable, under any underwriting or similar agreement as and to the extent
required thereunder.
(s) If
in the reasonable
opinion of counsel to the Company there is a question as to whether the
Registered Exchange Offer is permitted by applicable law, the Company hereby
agrees to seek a no-action letter or other favorable decision from the
Securities Exchange Commission (the “Commission”) allowing the Company to
consummate a Registered Exchange Offer for such Transfer Restricted Notes.
The
Company hereby agrees to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy. The Company hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such a Registered Exchange Offer should be permitted
and (C) diligently pursue a favorable resolution by the Commission staff of
such submission.
15
6. Registration
Expenses. The Company shall bear all reasonable fees and expenses (including
the reasonable fees and expenses, if any, of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, L.L.P., counsel for the Initial Purchaser, incurred in connection
with
the Registered Exchange Offer) incurred in connection with the performance
of
its obligations under Sections 2, 3, 4 and 5 hereof (other than brokers’,
dealers’ and underwriters’ discounts and commissions and brokers’, dealers’ and
underwriters’ counsel fees) and, in connection with the Shelf Registration
Statement, shall reimburse the Holders for the reasonable fees and disbursements
of one counsel for the Holders in connection therewith (which counsel shall
be
selected by the Majority Holders).
7. Rules 144
and
144A. The Company shall use reasonable best efforts to file the reports
required to be filed by it under the Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will,
upon the request of any Holder of Transfer Restricted Notes, make publicly
available the applicable information necessary to permit sales of their
securities pursuant to Rules 144 and 144A (or any successor rule adopted by
the Commission). The Company covenants that it will use its reasonable best
efforts to take such further action as any Holder of Transfer Restricted Notes
may reasonably request, all to the extent required from time to time to enable
such Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitations of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4) if applicable). The
Company will provide a copy of this Agreement to prospective purchasers of
Transfer Restricted Notes identified to the Company by the Initial Purchaser
upon request. Upon the request of any Holder of Transfer Restricted Notes,
the
Company shall deliver to such Holder a written statement as to whether it has
complied with such requirements.
8. Indemnification
and
Contribution. (a) (i) In connection with any Registration Statement,
the Company agrees to indemnify and hold harmless each Holder of Transfer
Restricted Notes covered thereby, the directors, officers, employees and agents
of each such Holder and each person who controls any such Holder within the
meaning of either the Act or the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement as originally filed or in any amendment thereof, in
any
preliminary Prospectus or Prospectus or in any amendment thereof or supplement
thereto, or (ii) the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading (in the
case of the Prospectus, in light of the circumstances under which they were
made), and will reimburse, as incurred, each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating, defending against or appearing as a third-party
witness in connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in
any case to the extent that any such loss, claim, damage or liability arises
out
of or is based upon (A) any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information relating to the Holder furnished to the Company by
or
on behalf of any such Holder specifically for use therein, or (B) use of a
Registration Statement or the related Prospectus during a period when a stop
order has been issued in respect of such Registration Statement or any
proceedings for that purpose have been initiated or use of a Prospectus when
use
of such Prospectus has been suspended pursuant to Section 3(c) or 5(c);
provided, that in each case, that the Company has previously provided
notice to such Holder of such stop order, initiation of proceedings or
suspension. This indemnity agreement will be in addition to any liability that
the Company may otherwise have.
16
(ii) The
Company also agrees to
indemnify or contribute to Losses, as provided in Section 8(d), of any
Managing Underwriters of Transfer Restricted Notes registered under a
Registration Statement, their officers and directors and each person who
controls such Managing Underwriters on substantially the same basis as that
of
the indemnification of the selling Holders provided in this Section 8(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 5(q) hereof.
(b) Each
Holder of Transfer
Restricted Notes covered by a Registration Statement severally agrees to
indemnify and hold harmless the Company and its directors, officers, employees
and agents and each person who controls the Company within the meaning of either
the Act or the Exchange Act to the same extent as the foregoing indemnity from
the Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such Holder
specifically for inclusion in the documents referred to in the foregoing
indemnity, or improper use by the Holder of a Registration Statement or the
related Prospectus during a period when a stop order has been issued in respect
of such Registration Statement or any proceedings for that purpose have been
initiated or use of a Prospectus when use of such Prospectus has been suspended
pursuant to Section 3(c) or 5(c); provided that in each case, that
such Holder received prior notice of such stop order, initiation of proceedings
or suspension. This indemnity agreement will be in addition to any liability
which any such Holder or person may otherwise have.
(c) Promptly
after receipt by
an indemnified party under this Section 8 of notice of the commencement of
any action, such indemnified party will, if a claim in respect thereof is to
be
made against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the failure
so to
notify the indemnifying party (i) will not relieve it from liability under
paragraph (a) or (b) above unless and to the extent it did not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party’s choice at the indemnifying
party’s expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party’s
election to appoint counsel to represent the indemnified party in an action,
the
indemnified parties collectively shall have the right to employ one separate
counsel (in addition to local counsel), and the indemnifying party shall bear
the reasonable fees, costs and expenses of such separate counsel (and local
counsel) if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of
interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded, based on the advice
of
outside counsel, that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of
such action or (iv) the indemnifying party shall have authorized the
indemnified party to employ separate counsel at the expense of the indemnifying
party; provided further, that the indemnifying party shall
not be responsible for the fees and expenses of more than one separate counsel
(not including appropriate local counsel) representing all the indemnified
parties under paragraph (a) or paragraph (b) above. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to
any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
17
(d) In
the event that the
indemnity provided in paragraph (a) or (b) of this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party for any
reason, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall have a joint and several obligation to contribute
to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending
same)
(collectively “Losses”) to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits received
by
such indemnifying party, on the one hand, and such indemnified party, on the
other hand, from the Registration Statement which resulted in such Losses.
If
the allocation provided by the immediately preceding sentence is unavailable
for
any reason, the indemnifying party and the indemnified party shall contribute
in
such proportion as is appropriate to reflect not only such relative benefits
but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. 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 on the one hand or such Holder
or
such other indemnified person, as the case may be, on the other, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The relative benefits received
by
the Company on the one hand and the Holders on the other with respect to the
Registration Statement shall be deemed to be in the same proportion as the
sum
of the net proceeds from the original issuance of the Notes received by the
Company, on the one hand, bear to the gain realized by the Holder with respect
to its sale of Transfer Restricted Securities, on the other. Benefits received
by any Managing Underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement that resulted in such
Losses. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
any other provision of this Section 8(d), the Holders of the Transfer
Restricted Notes shall in no case be required to contribute any amount in excess
of the amount by which the net proceeds received by such Holders from the sale
of the Transfer Restricted Notes pursuant to a Registration Statement exceeds
the amount of damages which such Holders have otherwise been required to pay
by
reason of such untrue or alleged untrue statement or omission or alleged
omission and in no case shall any Managing Underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable to the
Transfer Restricted Notes purchased by such Managing Underwriter under the
Registration Statement which resulted in such Losses pursuant to the terms
of
this Agreement. The parties agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation that does not take into account the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), 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. For purposes of this Section 8, each person
who controls an indemnified party within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of such indemnified
party shall have the same rights to contribution as such indemnified party,
and
each person who controls the Company within the meaning of either the Act or
the
Exchange Act and each director, officer, employee and agent of the Company
shall
have the same rights to contribution as the Company, subject in each case to
the
applicable terms and conditions of this paragraph (d).
18
(e) The
provisions of this
Section 8 will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder, the Company or any of the
officers, directors or controlling persons referred to in Section 8 hereof,
and will survive the sale by a Holder of Transfer Restricted Notes covered
by a
Registration Statement.
9. Underwritten
Registrations.
If
any of the Transfer Restricted
Notes covered by any Shelf Registration statement are to be sold in an
underwritten offering, the Managing Underwriter that will administer the
offering will be selected by the Majority Holders of such Transfer Restricted
Notes included in such offering, subject to the consent of the Company, which
is
not to be unreasonably withheld; it being expressly agreed that Wachovia Capital
Markets, LLC is an acceptable Managing Underwriter to the Company and such
Holders shall be responsible for all underwriting commissions and discounts
in
connection therewith.
No
person may participate in any
underwritten registration hereunder unless such person (i) agrees to sell such
person’s Transfer Restricted Notes on the basis reasonably provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements
and
other documents reasonably required under the terms of such underwriting
arrangements.
10. Miscellaneous.
(a)
No Inconsistent Agreements. The Company has not, as of the date hereof,
entered into nor shall it, on or after the date hereof, enter into any agreement
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
(b) Amendments
and
Waivers. The provisions of this Agreement, including the provisions of this
sentence, may not be amended, qualified, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given, unless
the Company has obtained the written consent of the Majority Holders.
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 the
Holders whose securities are being sold pursuant to an Exchange Offer
Registration Statement or a Shelf Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders may be given by Holders of at least a majority in aggregate principal
amount of the applicable notes being sold pursuant to such registration
statement.
19
(c) Notices.
All notices
and other communications provided for or permitted hereunder shall be made
in
writing by hand-delivery, first-class mail, telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if
to the Initial
Purchaser, as follows:
Wachovia
Capital Markets, LLC
One Wachovia Center
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
High Yield Origination
With
a
copy to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
▇▇▇
▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇. ▇▇▇▇▇
(ii) if
to any other Holder, at
the most current address given by such Holder to the Company in accordance
with
the provisions of this Section 10(c), which address initially is, with
respect to each Holder, the address of such Holder maintained by the registrar
under the Indenture, with a copy in like manner to the Initial Purchaser;
and
(iii) if
to the Company, as
follows:
IKON
Office Solutions, Inc.
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
Cravath,
Swaine & ▇▇▇▇▇ LLP
Worldwide
Plaza
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
20
All
such notices and communications
shall be deemed to have been duly given when received, if delivered by hand
or
air courier, and when sent, if sent by first-class mail, telex or
telecopier.
The
Company by notice to the others
may designate additional or different addresses for subsequent notices or
communications.
(d) Successors
and
Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without the need
for an express assignment or any consent by the Company thereto, subsequent
Holders.
(e) 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.
(f) Headings.
The
headings in this Agreement are for convenience of reference only and shall
not
limit or otherwise affect the meaning hereof.
(g) Governing
Law and
Consent to Jurisdiction. This agreement shall be governed by and construed
in accordance with the laws of the State of New York. The Company
(x) submits to the nonexclusive jurisdiction of the courts of the State of
New York and of the United States sitting in the Borough of Manhattan in respect
of any action, claim or proceeding (“Proceeding”) arising out of or
relating to this Agreement or the transactions contemplated hereby, (y)
irrevocably waives, to the fullest extent permitted by applicable law, any
objection that it may now or hereafter have to the laying of venue of any
Proceeding in the Supreme Court of the State of New York, County of New York,
or
the United States District Court for the Southern District of New York, and
any
claim that any Proceeding in any such court has been brought in an inconvenient
forum, and (z) agree that any service of process or other legal summons in
connection with any Proceeding may be served on it by mailing a copy thereof
by
registered mail, or a form of mail substantially equivalent thereto, postage
prepaid, addressed to the served party at its address as provided for in
Section 10(c). Nothing in this section shall affect the right of the
parties to serve process in any other manner permitted by law.
(h) Severability.
In the
event that any one or more of the provisions contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected thereby, it
being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(i) Notes
Held by the
Company, Etc. Whenever the consent or approval of Holders of a specified
percentage of principal amount of Transfer Restricted Notes or Exchange Notes
is
required hereunder, Transfer Restricted Notes or Exchange Notes held by the
Company or any of its Affiliates (other than subsequent Holders of Transfer
Restricted Notes or Exchange Notes if such subsequent Holders are deemed to
be
Affiliates solely by reason of their holdings of such Notes) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
[The
remainder of this page is intentionally left blank.]
21
Please
confirm that the foregoing correctly sets forth the agreement between and among
the Company and the Initial Purchaser.
| Very truly yours, | |
| IKON OFFICE SOLUTIONS, INC. | |
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ |
| Title: | Vice President and Treasurer |
SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT
The
foregoing Agreement is hereby acknowledged
and
accepted as of the date first written above.
|
WACHOVIA
CAPITAL MARKETS, LLC
|
|
| By: | /s Rit N Amin |
| Name: | Rit N Amin |
| Title: | Director |
SIGNATURE
PAGE TO REGISTRATION RIGHTS AGREEMENT
ANNEX
A
Each
broker-dealer that receives Exchange Notes for its own account pursuant to
the
Registered Exchange Offer must acknowledge that it will deliver a prospectus
in
connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an “underwriter” within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer during the Exchange Offer Registration
Period in connection with resales of Exchange Notes received in exchange for
Notes where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, during the Exchange Offer Registration Period, it will make this
Prospectus available to any broker-dealer for use in connection with any such
resale. See “Plan of Distribution.”
ANNEX
B
Each
broker-dealer that receives Exchange Notes for its own account in exchange
for
Notes, where such Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities, must acknowledge that
it
will deliver a prospectus in connection with any resale of such Exchange Notes
during the Exchange Offer Registration Period. See “Plan of
Distribution.”
ANNEX
C
PLAN
OF
DISTRIBUTION
Each
broker-dealer that receives
Exchange Notes for its own account pursuant to the Registered Exchange Offer
must acknowledge that it will deliver a prospectus in connection with any resale
of such Exchange Notes during the Exchange Offer Registration Period. This
Prospectus, as it may be amended or supplemented from time to time, may be
used
by a broker-dealer in connection with resales of Exchange Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, during
the
Exchange Offer Registration Period, it will make this Prospectus, as amended
or
supplemented, available to any broker-dealer for use in connection with any
such
resale.
The
Company will not receive any
proceeds from any sale of Exchange Notes by broker-dealers. Exchange Notes
received by broker-dealers for their own account pursuant to the Registered
Exchange Offer may be sold from time to time in one or more transactions in
the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Notes or a combination of such methods of resale, at
market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made
directly to Purchaser or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the Purchaser of any such Exchange Notes. Any broker-dealer
that resells Exchange Notes that were received by it for its own account
pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
“underwriter” within the meaning of the Act and any profit from any such resale
of Exchange Notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Act. The Letter
of Transmittal states that by acknowledging that it will deliver and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it
is
an “underwriter” within the meaning of the Act.
During
the Exchange Offer
Registration Period, the Company will promptly send additional copies of this
Prospectus and any amendment or supplement to this Prospectus to any
broker-dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Registered Exchange
Offer
(including the expenses of one counsel for the holders of the Notes) other
than
dealers’ and brokers’ discounts, commissions and counsel fees and will indemnify
the holders of the Notes (including any broker-dealers) against certain
liabilities, including liabilities under the Act.
[If
applicable, add information
required by Regulation S-K Items 507 and/or 508.]
ANNEX
D
CHECK
HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF
THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
Address:
The
undersigned represents that it
is not an Affiliate of the Company, that any Exchange Notes to be received
by it
will be acquired in the ordinary course of business and that at the time of
the
commencement of the Registered Exchange Offer it had no arrangement with any
person to participate in a distribution of the Exchange Notes.
In
addition, if the undersigned is
not a broker-dealer, the undersigned represents that it is not engaged in,
and
does not intend to engage in, a distribution of Exchange Notes. If the
undersigned is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Notes, it represents that the Notes to be exchanged
for
Exchange Notes were acquired by it as a result of market-making activities
or
other trading activities and acknowledges that it will deliver a prospectus
in
connection with any resale of such Exchange Notes; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit
that
it is an “underwriter” within the meaning of the Act.