Exhibit 4.4
REGISTRATION RIGHTS AGREEMENT
Dated as of December 22, 1997
by and among
American Lawyer Media Holdings, Inc.,
as Issuer
and
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc.
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BancBoston Securities Inc.,
as Initial Purchasers
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of December 22, 1997, by and among American Lawyer Media
Holdings, Inc., a Delaware corporation ("HOLDINGS") and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Securities, Inc., BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and BancBoston Securities Inc.
( the "INITIAL PURCHASERS") who have agreed to purchase Holdings's 12.25% Series
A Senior Discount Notes due 2008 (the "DISCOUNT NOTES") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 17, 1997 (the "PURCHASE AGREEMENT"), by and among Holdings and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Discount Notes, Holdings has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchasers set forth in Section 2 of the
Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, dated December 22,
1997 (the "INDENTURE"), between Holdings and The Bank of New York, as Trustee,
relating to the Discount Notes and the New Discount Notes (as defined below).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
CERTIFICATED SECURITIES: Definitive Discount Notes, as defined in the
Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the New Discount Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof, and (c) the delivery by Holdings to
the Registrar under the Indenture of New Discount
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Notes in the same aggregate principal amount as the aggregate principal amount
of the Discount Notes tendered by Holders thereof pursuant to the Exchange
Offer.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by Holdings of a principal
amount of the New Discount Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of the Discount Notes that are tendered by such Holders in connection with such
exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
NEW DISCOUNT NOTES: Holdings's 12.25% Series B Senior Discount Notes
due 2008 to be issued pursuant to the Indenture: (i) in the Exchange Offer or
(ii) as contemplated by Section 4 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of Holdings
relating to (a) an offering of New Discount Notes pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of this Agreement, and (ii) including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RESTRICTED BROKER-DEALER: Any Broker-Dealer that holds New Discount
Notes that were acquired in the Exchange Offer in exchange for the Discount
Notes that such Broker-Dealer acquired
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for its own account as a result of market making activities or other trading
activities (other than the Discount Notes acquired directly from Holdings or any
of its Affiliates).
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Discount Note, until the earliest
of the date of which (i) such Discount Note is exchanged in the Exchange Offer
for a New Discount Note and entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements of the Act,
(ii) such Discount Note has been disposed of in accordance with the Shelf
Registration Statement, (iii) such Discount Note is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including delivery of the Prospectus
contained therein), or (iv) such Note is distributed to the public pursuant to
Rule 144 under the Act or is salable pursuant to Rule 144(k) under the Act.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), Holdings shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission as soon as practicable after the
Closing Date (the "EXCHANGE OFFER FILING DATE"), but in no event later than 120
days after the Closing Date (such 120th day being the "FILING DEADLINE"), (ii)
use its reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no event
later than 180 days after the Closing Date (such 180th day being the
"EFFECTIVENESS DEADLINE"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the New Discount Notes to
be made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the
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New Discount Notes to be offered in exchange for the Discount Notes that are
Transfer Restricted Securities and to permit resales of New Discount Notes by
Broker-Dealers that tendered into the Exchange Offer Discount Notes that such
Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than the Discount Notes acquired
directly from Holdings or any of its Affiliates) as contemplated by Section 3(c)
below.
(b) Holdings shall use its best efforts to cause the Exchange Offer
Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
PROVIDED, HOWEVER, that in no event shall such period be less than 20 Business
Days. Holdings shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. No securities other than the New Discount
Notes shall be included in the Exchange Offer Registration Statement. Holdings
shall use its best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 30 Business Days thereafter (such
30th day being the "CONSUMMATION DEADLINE").
(c) Holdings shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted Securities that
were acquired for the account of such Broker-Dealer as a result of market-making
activities or other trading activities (other than Transfer Restricted
Securities acquired directly from Holdings or any Affiliate of Holdings), may
exchange such Transfer Restricted Securities pursuant to the Exchange Offer;
HOWEVER, such Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any New Discount
Notes received by such Broker-Dealer in the Exchange Offer and that the
Prospectus contained in the Exchange Offer Registration Statement may be used by
such Broker-Dealer to satisfy such prospectus delivery requirement. Such "Plan
of Distribution" section shall also contain all other information with respect
to such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
To the extent necessary to ensure that the Prospectus contained in the
Exchange Offer Registration Statement is continuously available for sales of New
Discount Notes by Broker-Dealers, Holdings agrees to use its best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented and amended as required by the provisions of Section 6(c) hereof
and in conformity with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the Consummation Deadline, or such shorter
period as will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto. Holdings shall promptly
provide sufficient copies of the latest version of such Prospectus to such
Broker-Dealer
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promptly upon request, and in no event later than one day after such request, at
any time during such period.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Exchange Offer is not permitted
by applicable law or Commission policy (after Holdings has complied with the
procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of Discount
Notes which are Transfer Restricted Securities notifies Holdings prior to the
20th Business Day following the Consummation Deadline that (A) such Holder was
prohibited by law or Commission policy from participating in the Exchange Offer,
(B) such Holder may not resell the New Discount Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) such Holder is a Broker-Dealer
and holds the Discount Notes acquired directly from Holdings or any of its
Affiliates, then Holdings shall:
(x) cause to be filed, on or prior to 30 days after the earlier of (i) the
date on which Holdings determines that the Exchange Offer Registration Statement
cannot be filed as a result of clause (a)(i) above and (ii) the date on which
Holdings receives the notice specified in clause (a)(ii) above (such earlier
date, the "FILING DEADLINE"), a shelf registration statement pursuant to Rule
415 under the Act (which may be an amendment to the Exchange Offer Registration
Statement (the "SHELF REGISTRATION STATEMENT")), to register for public resale
to all Transfer Restricted Securities held by any such Holders who provides
Holdings with certain information for inclusion in the Shelf Registration
Statement, and
(y) shall use its best efforts to cause such Shelf Registration Statement
to become effective on or prior to 90 days after the Filing Deadline (such 90th
day the "EFFECTIVENESS DEADLINE").
If, after Holdings has filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, Holdings is required to
file and make effective a Shelf Registration Statement solely because the
Exchange Offer is not permitted under applicable federal law (i.e. clause (a)(i)
above), then the filing of the Exchange Offer Registration Statement shall be
deemed to satisfy the requirements of clause (x) above; PROVIDED that, in such
event, Holdings shall remain obligated to meet the Effectiveness Deadline set
forth in clause (y) above.
Holdings shall use its reasonable best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented and amended as required by and subject to the provisions of
Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for the period
specified by Rule 144(k) (as extended pursuant to Section 6(c)(i)) following the
Closing Date or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement have been
sold pursuant thereto.
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(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH
THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
Holdings in writing, within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of Regulation S-K, as applicable, of
the Act for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein. No Holder of Transfer
Restricted Securities shall be entitled to liquidated damages pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to Holdings by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable Filing Deadline, (ii)
any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation
Deadline, (iv) if obligated to file the Shelf Registration Statement and
Holdings fails to file the Shelf Registration Statement with the Commission on
or prior to the Filing Deadline, (v) if obligated to file a Shelf Registration
Statement and the Shelf Registration Statement is not declared effective on or
prior to the Effectiveness Deadline, or (vi) if the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is declared
effective but thereafter ceases to be effective or useable in connection with
resales of Transfer Restricted Securities, such time of non-effectiveness or
non-useability (each such event referred to in clauses (i) through (vi), a
"REGISTRATION DEFAULT"), then Holdings agrees to pay to each Holder of Transfer
Restricted Securities affected thereby liquidated damages in an amount equal to
$0.10 per week per $1,000 in principal amount of Transfer Restricted Securities
held by such Holder for each week or portion thereof that the Registration
Default continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the liquidated damages
shall increase by an additional $0.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of $0.25 per week per $1,000 in principal amount of Transfer
Restricted Securities; PROVIDED that Holdings shall in no event be required to
pay liquidated damages for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of clause (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of clause (ii) above,
(3) upon Consummation of the Exchange Offer, in the case of clause (iii) above,
or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made useable in the case of clause (iv) above,
the liquidated damages payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii), (iii) or (iv), as
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applicable, shall cease.
All accrued liquidated damages shall be paid by Holdings to the
Holders entitled thereto, in the manner provided for the payment of interest on
the Discount Notes in the Indenture, on each Interest Payment Date, as more
fully set forth in the Indenture and the Discount Notes. All obligations of
Holdings set forth in the preceding paragraph that are outstanding with respect
to any Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, Holdings shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use its best efforts to effect such exchange and to
permit the resale of New Discount Notes by Broker-Dealers that tendered Discount
Notes in the Exchange Offer that such Broker-Dealer acquired for its own account
as a result of its market making activities or other trading activities (other
than Discount Notes acquired directly from Holdings or any of its Affiliates)
being sold in accordance with the intended method or methods of distribution
thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as
the Exchange Offer, that in the reasonable opinion of counsel to
Holdings raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, Holdings hereby agrees
to seek a no-action letter or other favorable decision from the
Commission allowing Holdings to Consummate an Exchange Offer for such
Transfer Restricted Securities. Holdings hereby agrees to pursue the
issuance of such a decision to the Commission staff level. In
connection with the foregoing, Holdings hereby agrees to take all such
other actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with
the Commission, (B) delivering to the Commission staff an analysis
prepared by counsel to Holdings setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer
should be permitted, and (C) diligently pursuing a resolution (which
need not be favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of Holdings, prior to the Consummation of the Exchange Offer,
a written representation to Holdings (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of Holdings,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the New Discount Notes to be issued in the Exchange
Offer, and (C) it is acquiring the New Discount
8
Notes in its ordinary course of business. Each Holder using the
Exchange Offer to participate in a distribution of the New Discount
Notes hereby acknowledges and agrees that, if the resales are of New
Discount Notes obtained by such Holder in exchange for the Discount
Notes acquired directly from Holdings or an Affiliate thereof, it (1)
could not, under Commission policy as in effect on the date of this
Agreement, rely on the position of the Commission enunciated in ▇▇▇▇▇▇
▇▇▇▇▇▇▇ AND CO., INC. (available June 5, 1991) and EXXON CAPITAL
HOLDINGS CORPORATION (available May 13, 1988), as interpreted in the
Commission's letter to SHEARMAN & STERLING dated July 2, 1993, and
similar no-action letters (including, if applicable, any no-action
letter obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of the Act
in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, Holdings shall provide a supplemental letter to the
Commission (A) stating that Holdings and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in EXXON CAPITAL HOLDINGS CORPORATION (available
May 13, 1988), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND CO., INC. (available June 5, 1991),
as interpreted in the Commission's letter to SHEARMAN & STERLING dated
July 2, 1993, and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation that
neither Holdings has not entered into any arrangement or understanding
with any Person to distribute the New Discount Notes to be received in
the Exchange Offer and that, to the best of Holdings's information and
belief, each Holder participating in the Exchange Offer is acquiring
the New Discount Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the New Discount Notes received in the Exchange Offer,
and (C) making any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to
clause (i) above, if applicable.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, Holdings shall (x) comply with all the provisions of
Section 6(c) below and (y) use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof (as indicated in the
information furnished to Holdings pursuant to Section 4(b) hereof), and pursuant
thereto Holdings will prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof.
(c) GENERAL PROVISIONS. In connection with any Registration
Statement and any related Prospectus required by this Agreement unless otherwise
specifically noted Holdings shall:
(i) use its reasonable best efforts to keep such Registration
Statement continuously
9
effective and provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement, as applicable.
Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and useable for resale of Transfer Restricted Securities during the
period required by this Agreement, Holdings shall file promptly an
appropriate amendment to such Registration Statement curing such
defect, and, if Commission review is required, use its best efforts to
cause such amendment to be declared effective as soon as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
period specified in Section 3 or 4 of this Agreement, as applicable;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the selling Holders and Initial Purchasers promptly
and, if requested by such Persons, confirm such advice in writing, (A)
when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to any applicable
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission
for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the
Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes, and (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment or
supplement thereto or any document incorporated by reference therein
untrue, or that requires the making of any additions to or changes in
the Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or changes
in the Prospectus in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If at any time the Commission shall issue any stop order suspending
the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an
order suspending the qualification or exemption from qualification of
the Transfer Restricted Securities under state securities or Blue Sky
laws, Holdings shall use its best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
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(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to the Initial Purchasers and each selling Holder
named in any Registration Statement or Prospectus in connection with
such exchange or sale, if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included
therein or any amendments or supplements to any such Registration
Statement or Prospectus (including all documents incorporated by
reference after the initial filing of such Registration Statement),
which documents will be subject to the review and comment of such
Persons in connection with such sale, if any, for a period of at least
five Business Days, and Holdings will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which such any Persons shall reasonably
object within five Business Days after the receipt thereof. Such
Person shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement
or omission or fails to comply with the applicable requirements of the
Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
(A) provide copies of such document to the selling Holders and Initial
Purchasers in connection with such exchange or sale, if any, (B) make
Holdings's representatives available for discussion of such document
and other customary due diligence matters, and (C) include such
information in such document prior to the filing thereof as such
Persons may reasonably request; PROVIDED, HOWEVER, that such Persons
shall first agree in writing with Holdings that any information that
is reasonably and in good faith designated by Holdings in writing as
confidential at the time of delivery of such information shall be kept
confidential by such Persons, unless (i) disclosure of such
information is required by court or administrative order or is
necessary to respond to inquires of regulatory authorities, (ii)
disclosure of such information is required by law (including any
disclosure requirements pursuant to federal securities laws in
connection with the filing of such Registration Statement or the use
of any Prospectus), (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to
safeguard such information by such Person, or (iv) such information
becomes available to such Person from a source other than Holdings and
its subsidiaries and such source is not known, after due inquiry, by
such Person to be bound by a confidentiality agreement; PROVIDED
FURTHER, that the foregoing investigation shall be coordinated on
behalf of such Persons by one representative designated by and on
behalf of such Persons and any such confidential information shall be
available from such representative to such Persons so long as any
Person
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agrees to be bound by such confidentiality agreement;
(vii) make available at reasonable times for inspection by the
selling Holders and Initial Purchasers participating in any
disposition pursuant to such Registration Statement and any attorney
or accountant retained by such Persons, all financial and other
records and pertinent corporate documents of Holdings and cause
Holdings's officers, directors and employees to supply all information
reasonably requested by any such Persons, attorney or accountant in
connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its
effectiveness;
(viii) if requested by any selling Holders in connection with
such exchange or sale or any Initial Purchaser in connection with
market making activities, promptly include in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
Initial Purchasers may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities and the use of the
Registration Statement or Prospectus for market making activities, and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after Holdings is
notified of the matters to be included in such Prospectus supplement
or post-effective amendment;
(ix) furnish to each selling Holder and each Initial Purchaser
who is deemed to be an affiliate of the Company, in connection with
such exchange or sale, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of
each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated
therein by reference);
(x) deliver to each selling Holder and each Initial Purchaser
who is deemed to be an affiliate of the Company without charge, as
many copies of the Prospectus (including each preliminary Prospectus)
and any amendment or supplement thereto as such Persons reasonably may
request; Holdings hereby consents to the use (in accordance with law)
of the Prospectus and any amendment or supplement thereto by each of
the selling Holders and such Initial Purchasers in connection with the
offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto and the market
making activities of such Initial Purchasers, as the case may be;
(xi) in the case of a Shelf Registration Statement only, upon
the request of Holders of at least 50% in aggregate principal amount
of Transfer Restricted Securities, and, in the case of any applicable
Registration Statement, upon request of an Initial Purchaser who is
deemed to be an affiliate of the Company, if, for the purpose of
making a market, enter into such agreements (including underwriting
agreements) and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to such Shelf Registration Statement contemplated by this
Agreement as may be reasonably requested by any Holder of Transfer
12
Restricted Securities in connection with any sale or resale pursuant
to any applicable Shelf Registration Statement. In such connection
and in connection with market making activities by an Initial
Purchaser who is deemed to be an affiliate of the Company, Holdings
shall:
(A) upon the request of such Person, furnish (or in the
case of subparagraphs (2) and (3) below, use its best efforts to
cause to be furnished) to each such Person, upon the
effectiveness of the Shelf Registration Statement or upon
Consummation of the Exchange Offer, as the case may be:
(1) a certificate, dated such date, signed on behalf
of Holdings by (x) the President or any Vice President and
(y) a principal financial or accounting officer of Holdings,
confirming, as of the date thereof, the matters set forth in
paragraphs (a) through (d) of Section 7 of the Purchase
Agreement and such other similar matters as the such Person
may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, of counsel for
Holdings covering matters similar to those set forth in
paragraph (e) of Section 7 of the Purchase Agreement and
such other matters as such Person may reasonably request,
and in any event including a statement to the effect that
such counsel has participated in conferences with officers
and other representatives of Holdings, representatives of
the independent public accountants for Holdings and has
considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises
that, on the basis of the foregoing (relying as to
materiality to the extent such counsel deems appropriate
upon the statements of officers and other representatives of
Holdings) and without independent check or verification), no
facts came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective and, in
the case of the Exchange Offer Registration Statement, as of
the date of Consummation of the Exchange Offer, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the
Prospectus contained in such Registration Statement as of
its date and, in the case of the opinion dated the date of
Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may state
further that such counsel assumes no responsibility for, and
has not independently verified, the accuracy, completeness
or fairness of the financial statements, notes and schedules
and other financial data included in any Registration
Statement contemplated by this Agreement or the related
Prospectus; and
13
(3) a customary comfort letter, dated the date of
Consummation of the Exchange Offer, or as of the date of
effectiveness of the Shelf Registration Statement, as the
case may be, from Holdings's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters to underwriters in connection
with underwritten offerings, and affirming the matters set
forth in the comfort letters delivered pursuant to Section
7(g) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such Persons to evidence compliance with
subclause (A) above and with any customary conditions contained
in any agreement entered into by Holdings pursuant to this clause
(xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; PROVIDED, HOWEVER, that
Holdings shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action
that would subject it to the service of process in suits or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xiii) issue, upon the request of any Holder of the Discount
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, New Discount Notes having an aggregate principal amount
equal to the aggregate principal amount of the Discount Notes
surrendered to Holdings by such Holder in exchange therefor or being
sold by such Holder; such New Discount Notes to be registered in the
name of such Holder or in the name of the purchaser(s) of such New
Discount Notes, as the case may be; in return, the Discount Notes held
by such Holder shall be surrendered to Holdings for cancellation;
(xiv) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being
Transfer Restricted Securities, cooperate with the selling Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the selling Holders
may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
(xv) use its reasonable best efforts to cause the disposition of
the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause
(xii) above;
14
(xvi) provide a CUSIP or CINS number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with
The Depository Trust Company;
(xvii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term
is defined in paragraph (c) of Rule 158 under the Act);
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate
with the Trustee and the Holders to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to
be so qualified in a timely manner; and
(xx) provide promptly to each Holder and Initial Purchaser upon
request each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) RESTRICTIONS ON HOLDERS. Each Holder including each Initial
Purchaser agrees by acquisition of a Transfer Restricted Security, and each
Initial Purchaser who is required to deliver a prospectus in connection with
market making transactions, agrees that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) or any notice from Holdings of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"SUSPENSION NOTICE"), such Person will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof or (ii) such Person is
advised in writing by Holdings that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "RECOMMENCEMENT
NOTICE"). Each Person receiving a Suspension Notice hereby agrees that it will
either (i) destroy all copies of the Prospectus, other than permanent file
copies, then in such Person's possession which have been replaced by Holdings
with more recently dated Prospectuses or (ii) deliver to Holdings (at Holdings's
expense) all copies of the Prospectus, other than permanent file copies, then in
such Person's possession covering such Transfer Restricted Securities that was
current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Notice.
15
SECTION 7. REGISTRATION EXPENSES
All expenses incident to Holdings's performance of or compliance with
this Agreement will be borne by Holdings, regardless of whether a Registration
Statement becomes effective, including without limitation: (i) all registration
and filing fees and expenses; (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing certificates for the New Discount Notes to be
issued in the Exchange Offer and printing of Prospectuses whether for exchanges,
sales, market making or otherwise, messenger and delivery services and
telephone); (iv) all fees and disbursements of counsel for Holdings; (v) all
application and filing fees in connection with listing the New Discount Notes on
a national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of Holdings (including the expenses of any special
audit and comfort letters required by or incident to such performance).
Holdings will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by
Holdings.
SECTION 8. INDEMNIFICATION AND CONTRIBUTION
(a) Holdings agrees to indemnify and hold harmless each Holder, its
directors, its officers and each Person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) such Holder
(an "INDEMNIFIED HOLDER") from and against any and all losses, claims, damages,
liabilities or judgments (including any reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement, preliminary Prospectus
or Prospectus (or any amendment or supplement thereto) provided by Holdings to
any holder or any prospective purchaser of New Discount Notes or arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with information relating to any of
the Holders furnished in writing to Holdings by any of the Holders. In addition,
Holdings will not be required to indemnify a Holder if such Holder sold to the
person asserting the claim that the Discount Notes or New Discount Notes which
are the subject of such claim and such untrue statement or omission or alleged
untrue statement or omission (referred to above) was contained or made in any
preliminary prospectus and corrected in the Prospectus or any amendment or
supplement thereto and the Prospectus does not contain any other untrue
statement or omission or alleged untrue statement or omission of a material fact
that was the subject matter of the related proceeding and it is established by
Holdings in the related proceeding that such Holder failed to deliver or provide
a copy of the Prospectus (as amended or supplemented) to such Person with or
prior to the confirmation of the sale of such Discount Notes or New Discount
Notes sold to such
16
Person if required by applicable law, unless such failure to deliver or provide
a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by Holdings with Section 6 of this Agreement.
(b) Each Indemnified Holder agrees, severally and not jointly, to
indemnify and hold harmless Holdings, and its directors and officers, and each
Person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) Holdings to the same extent as the foregoing
indemnity from Holdings to each of the Indemnified Holders, but only with
reference to information relating to such Indemnified Holder furnished in
writing to Holdings by the Indemnified Holder expressly for use in any
Registration Statement, preliminary Prospectus or Prospectus (or any amendment
to supplement thereto) with respect to any untrue statement or representation
made by such holder in writing to Holdings. In no event shall any Indemnified
Holder be liable or responsible for any amount in excess of the amount by which
the total amount received by such Indemnified Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement exceeds (i)
the amount paid by such Indemnified Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Indemnified Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses (except that in the case of any action in
respect of which indemnity may be sought pursuant to both Sections 8(a) and
8(b), an Indemnified Holder shall not be required to assume the defense of such
action pursuant to this Section 8(c), but may employ separate counsel and
participate in the defense thereof, but the fees and expenses of such counsel,
except as provided below, shall be at the expense of the Indemnified Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action, suit or proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the indemnifying parties have agreed in writing to pay such
fees and expenses, (ii) the indemnifying party shall have failed timely to
assume the defense or to employ counsel reasonably satisfactory to the
indemnified party, or (iii) the named parties to any such action, suit or
proceeding (including any impleaded parties) include both the indemnified party
and the indemnifying party, and the indemnified party shall have been advised by
such counsel that representation of such indemnified party would be
inappropriate under the applicable standards of professional conduct (whether or
not such representation by the same counsel has been proposed) due to actual or
potential differing interests between the parties (in which case the
indemnifying party shall not have the right to assume the defense of such
action, suit or proceeding on behalf of the indemnified party). It is
understood, however, that the indemnifying parties shall, in connection with any
one such action, suit or proceeding or separate but substantially similar or
related actions, suits or proceedings in the same jurisdiction arising out of
the same general allegations or
17
circumstances, be liable for the fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all the indemnified
parties, and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by a majority of the
Indemnified Holders, in the case of the parties indemnified pursuant to Section
8(a), and by Holdings, in the case of parties indemnified pursuant to Section
8(b). The indemnifying party shall indemnify and hold harmless the indemnified
party from and against any and all losses, claims, damages, liabilities and
judgments by reason of any settlement of any action (i) effected with its
written consent or (ii) effected without its written consent if the settlement
is entered into more than twenty (20) Business Days after the indemnifying party
shall have received a written request from the indemnified party for
reimbursement for the fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party) and, prior to the
date of such settlement, the indemnifying party shall have failed to comply with
such reimbursement request. The indemnifying parties shall not be liable for
any settlement of any such action, suit or proceeding effected without their
written consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the indemnifying parties agree to indemnify and hold
harmless the indemnified parties, to the extent provided in the paragraph (a),
from and against such loss, claim, damage, liability, expense or judgment by
reason of such settlement or judgment.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by Holdings, on the
one hand, and the Indemnified Holders, on the other hand, from their sale of
Transfer Restricted Securities or (ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause 8(d)(i) above
but also the relative fault of Holdings, on the one hand, and of the Indemnified
Holders, on the other hand, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or judgments, as well as
any other relevant equitable considerations. The relative fault of Holdings, on
the one hand, and of the Indemnified Holders, on the other hand, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Holdings, on the one hand, or
by the Indemnified Holders, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities or judgments referred to above shall be
deemed to include, subject to the limitations set forth in the second paragraph
of Section 8(d), any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim.
Holdings and each Holder agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of
18
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. Notwithstanding the provisions of this Section 8, no Holder
or its related Indemnified Holders shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities PLUS (B) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each of the Holders
hereunder and not joint.
(e) Any losses, claims, damages, liabilities, expenses or judgments
for which an indemnified party is entitled to indemnification or contribution
under this Section 8 shall be paid by the indemnifying party to the indemnified
party as such losses, claims, damages, liabilities, expenses or judgments are
incurred. The indemnity and contribution agreements contained in this Section 8
and the representations and warranties of Holdings set forth in this Agreement
shall remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any indemnified party, (ii) acceptance of
any Discount Notes and payment therefore hereunder, and (iii) any termination of
this Agreement. A successor to any indemnified party, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 8.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such action, suit or proceeding.
SECTION 9. RULE 144 AND RULE 144A
Holdings agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which Holdings
(i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder of Transfer Restricted Securities, to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A and (ii) is subject to
Section 13
19
or 15 (d) of the Exchange Act, to make all filings required thereby in a timely
manner in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) REMEDIES. Holdings acknowledges and agrees that any failure by
Holdings to comply with its obligations under Sections 3 and 4 hereof may result
in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce Holdings's obligations under Sections 3 and 4
hereof. Holdings further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Holdings will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. Holdings has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of Holdings's securities under any agreement in effect on the date
hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), Holdings has obtained the written consent of
Holders of all outstanding Transfer Restricted Securities and (ii) in the case
of all other provisions hereof, Holdings has obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities (excluding Transfer Restricted Securities held by Holdings or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does
not affect directly or indirectly the rights of other Holders whose securities
are not being tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities subject to such Exchange Offer.
(d) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between Holdings, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect their rights or the rights of Holders
hereunder.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
20
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to Holdings:
American Lawyer Media Holdings, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment subsequent Holders of Transfer Restricted Securities; PROVIDED, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities in any manner, whether by operation
of law or otherwise, such Transfer Restricted Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
21
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AMERICAN LAWYER MEDIA HOLDINGS, INC.
By:
-------------------------------------
Name:
Title:
22
ACCEPTED AND AGREED TO:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BANCBOSTON SECURITIES INC.
By: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
By:
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Name:
Title:
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EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER REGISTRATION STATEMENT
To:
From: American Lawyer Media Holdings, Inc.
__% Senior Discount Notes due 2008
Date: ___, ___
For your information only (NO ACTION REQUIRED):
Today, ______, ___, we filed [an Exchange Registration Statement/a Shelf
Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within __
business days of the date hereof.
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