EXHIBIT 4.6
Registration Rights Agreement
among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LTD.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC
and
▇▇▇▇▇▇ Brothers Inc.
Banc of America Securities LLC
First Union Securities, Inc.
DATED AS OF MAY 31, 2001
REGISTRATION RIGHTS AGREEMENT, dated as of May 31, 2001, among ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Ltd., a company organized under the laws of Bermuda ("FW Ltd.") and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, a Delaware Limited Liability Company ("FW LLC" and together
with FW Ltd., the "FW Parties") and ▇▇▇▇▇▇ Brothers Inc., Banc of America
Securities LLC and First Union Securities, Inc. (collectively, the "Initial
Purchasers").
Pursuant to the Purchase Agreement, dated May 24, 2001, among ▇▇▇▇▇▇
Brothers Inc. for themselves and the other Initial Purchasers (the "Purchase
Agreement"), the Initial Purchasers have agreed to purchase from the FW Ltd. up
to $200,000,000 ($240,000,000 if the Initial Purchasers exercise the option
pursuant to Section 2(b) of the Purchase Agreement to purchase additional
securities in full) in aggregate principal amount of FW Ltd.'s 6.50% Convertible
Subordinated Notes due 2007 (the "Notes"). The Notes will be convertible into
fully paid, nonassessable common shares (the "Common Shares") of FW Ltd., on the
terms, and subject to the conditions, set forth in the Indenture (as defined
herein). To induce the Initial Purchasers to purchase the Notes, the FW Parties
have agreed to provide the registration rights set forth in this Agreement.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meanings:
Advice: As defined in Section 4(c)(ii) hereof.
Additional Amounts: As defined in Section 3(a) hereof.
Affiliate: As such term is defined in Rule 405 under the Securities
Act.
Agreement: This Registration Rights Agreement.
Blue Sky Application: As defined in Section 6(a) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: A day other than a Saturday or Sunday or any federal
holiday in the United States.
Commission: Securities and Exchange Commission.
Common Shares: As defined in the preamble hereto.
Damages Payment Date: Each Interest Payment Date. For purposes of this
Agreement, if no Notes are outstanding, "Damages Payment Date" shall mean
each date that would otherwise be an Interest Payment Date.
Effectiveness Period: As defined in Section 2(a)(iii) hereof.
Effectiveness Target Date: As defined in Section 2(a)(ii) hereof.
Exchange Act: Securities Exchange Act of 1934, as amended.
Holder: A Person who owns, beneficially or otherwise, Transfer
Restricted Securities.
Indemnified Holder: As defined in Section 6(a) hereof.
Indenture: The Indenture, dated as of May 29, 2001, among the FW
Parties and BNY Midwest Trust Company, as trustee (the "Trustee"), pursuant
to which the Notes are to be issued, as such Indenture is amended, modified
or supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture.
Majority of Holders: Holders holding more than 50% in aggregate
principal amount of the Notes outstanding at the time of determination of
the Majority of Holders; provided, however, that, for purposes of this
definition, a holder of Common Shares which constitutes Transfer Restricted
Securities that were previously issued upon conversion of Notes shall be
deemed to hold an aggregate principal amount of Notes (in addition to the
principal amount of Notes held by such holder) equal to the product of (x)
the number of such shares of Common Shares held by such holder and (y) the
prevailing conversion price, such prevailing conversion price as adjusted
in accordance with Section 12.4 of the Indenture.
NASD: National Association of Securities Dealers, Inc.
Notes: As defined in the preamble hereto.
Person: An individual, partnership, corporation, unincorporated
organization, limited liability company, trust, joint venture or a
government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Shelf Registration Statement,
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.
Questionnaire Deadline: As defined in Section 2(b) hereof.
Record Holder: With respect to any Damages Payment Date, each Person
who is a Holder on the record date with respect to the Interest Payment
Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 3(a) hereof.
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Sale Notice: As defined in Section 4(e) hereof.
Securities Act: Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 2(a)(i) hereof.
Shelf Registration Statement: As defined in Section 2(a)(i) hereof.
Suspension Period. As defined in Section 4(b)(i) hereof.
TIA: Trust Indenture Act of 1939, as in effect on the date the
Indenture is qualified under the TIA.
Transfer Restricted Securities: Each Note and each share of Common
Shares issued upon conversion of Notes until the earliest to occur of:
(i) the date on which such Note or such Common Shares issued upon
conversion has been effectively registered under the Securities Act
and disposed of in accordance with the Shelf Registration Statement;
(ii) the date on which such Note or such Common Shares issued
upon conversion (A) has been transferred in compliance with Rule 144
under the Securities Act or (B) may be sold or transferred pursuant to
Rule 144 under the Securities Act without regard to the volume
limitations thereof (or any other similar provision then in force);
and
(iii) the date on which such Note or such Common Shares issued
upon conversion ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise).
Underwritten Registration or Underwritten Offering: A registration in
which the Notes or the Common Shares received upon conversion of the Notes
are sold to an underwriter for reoffering to the public; provided, however,
that such registration or offering shall be made no more than two times
under this Agreement and shall be for an offering of at least $40,000,000.
2. Shelf Registration.
(a) The FW Parties shall:
(i) not later than 90 days after the earliest date of original
issuance of any of the Notes (the "Shelf Filing Deadline"), cause a
registration statement to be filed pursuant to Rule 415 under the
Securities Act (the "Shelf Registration Statement"), which Shelf
Registration Statement shall provide for resales of all Transfer
Restricted Securities held by Holders that have provided the
information required pursuant to the terms of Section 2(b) hereof;
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(ii) use their reasonable efforts to cause the Shelf Registration
Statement to be declared effective by the Commission as promptly as is
practicable but in no event later than 180 days after the earliest
date of original issuance of any of the Notes (the "Effectiveness
Target Date"); and
(iii) use their reasonable efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as required
by the provisions of Section 4(b) hereof to the extent necessary to
ensure that: (A) it is available for resales by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Agreement and (B) it conforms with the requirements of this Agreement
and the Securities Act and the rules and regulations of the Commission
promulgated thereunder as announced from time to time, for a period
(the "Effectiveness Period") until the earliest of:
(1) two years following the last date of original issuance
of any of the Notes; or
(2) the date when the Holders of the Notes and the common
shares issuable upon conversion of the Notes are able to sell all
such securities immediately without restriction pursuant to the
volume limitation provisions of Rule 144 under the Securities
Act; or
(3) the date when all of the Notes and Common Shares into
which the Notes are convertible that are owned by the Holders who
complete and deliver in a timely manner the selling
securityholder election and questionnaire attached hereto as
Exhibit A are --------- registered under the Shelf Registration
Statement and sold in accordance with it.
(b) Not less than 30 calendar days prior to the effectiveness of the
Shelf Registration Statement, the FW Parties shall mail the form of
questionnaire attached hereto as Exhibit A to each Holder, and no Holder of
Transfer Restricted Securities may include any of its Transfer Restricted
Securities in the Shelf Registration Statement pursuant to this Agreement unless
such Holder furnishes to the FW Parties in writing, prior to or on the 20th
calendar day after receipt of a request therefor (the "Questionnaire Deadline"),
such information as the FW Parties may reasonably request for use in connection
with the Shelf Registration Statement or Prospectus or preliminary Prospectus
included therein and in any application to be filed with or under state
securities laws. In connection with all such requests for information from
Holders of Transfer Restricted Securities, the FW Parties shall notify such
Holders of the requirements set forth in the preceding sentence. No Holder of
Transfer Restricted Securities shall be entitled to Additional Amounts pursuant
to Section 3 hereof unless such Holder shall have provided all such reasonably
requested information prior to or on the Questionnaire Deadline. Each Holder as
to which the Shelf Registration Statement is being effected agrees to furnish
promptly to the FW Parties all information required to be disclosed in order to
make information previously furnished to the FW Parties by such Holder not
materially misleading.
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3. Additional Amounts.
(a) If:
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) subject to the provisions of Section 4(b)(i) hereof, the
Shelf Registration Statement is filed and declared effective but,
during the Effectiveness Period, shall thereafter cease to be
effective or fail to be usable for its intended purpose without being
succeeded within ten Business Days by a post-effective amendment to
the Shelf Registration Statement or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act that
cures such failure and, in the case of a post-effective amendment, is
itself immediately declared effective; or
(iv) prior to or on the 45th or 60th day, as the case may be, of
any Suspension Period, such suspension has not been terminated,
(each such event referred to in foregoing clauses (i) through (iv), a
"Registration Default"), the FW Parties hereby jointly and severally agree to
pay the following additional amounts ("Additional Amounts") with respect to the
Transfer Restricted Securities for which the Holders thereof have provided the
information under the terms of Section 2(b) hereof, from and including the day
following the Registration Default up to but excluding the day on which the
Registration Default has been cured:
(A) in respect of the Notes, to each holder of Notes, (x)
with respect to the first 60-day period during which a
Registration Default shall have occurred and be continuing, in an
amount per year equal to an additional 0.25% of the principal
amount of the Notes, and (y) with respect to the period
commencing on the 61st day following the day the Registration
Default shall have occurred and be continuing, in an amount per
year equal to an additional 0.50% of the principal amount of the
Notes; provided that in no event shall Additional Amounts accrue
at a rate per year exceeding 0.50% of the principal amount of the
Notes; and
(B) in respect of any Common Shares issued upon conversion
of Notes, to each holder of such Common Shares, (x) with respect
to the first 60-day period in which a Registration Default shall
have occurred and be continuing, in an amount per year equal to
0.25% of the principal amount of the Notes converted into such
Common Shares, and (y) with respect to the period commencing the
61st day following the day the Registration Default shall have
occurred and be continuing, in an amount per year equal
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to 0.50% of the principal amount of the Notes converted into such
Common Shares; provided, however, that in no event shall
Additional Amounts accrue at a rate per year exceeding 0.50% of
the principal amount of the Notes converted into such Common
Shares.
(b) All accrued Additional Amounts shall be paid in arrears to Record
Holders by the FW Parties on each Damages Payment Date in the same manner as
interest is payable pursuant to the Notes. Following the cure of all
Registration Defaults relating to any particular Note or Common Shares issued
upon conversion of Notes, the accrual of Additional Amounts with respect to such
Note or such Common Shares shall cease.
All obligations of the FW Parties set forth in this Section 3 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 Transfer Restricted Security shall have been
satisfied in full.
The Additional Amounts set forth above shall be the exclusive remedy
available to the Holders of Transfer Restricted Securities for Registration
Defaults.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the FW
Parties shall comply with all the provisions of Section 4(b) hereof and shall
use their reasonable efforts to effect such registration to permit the sale of
the Transfer Restricted Securities being sold thereunder, and pursuant thereto,
shall as expeditiously as practicable prepare and file with the Commission a
Shelf Registration Statement relating to the registration on any appropriate
form under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of Transfer
Restricted Securities, the FW Parties shall:
(i) Subject to any notice by the FW Parties in accordance with
this Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(C), use their reasonable efforts to
keep the Shelf Registration Statement continuously effective during
the Effectiveness Period; upon the occurrence of any event that would
cause the Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
be effective and usable for the resale of Transfer Restricted
Securities during the Effectiveness Period, the FW Parties shall file
promptly an appropriate amendment to the Shelf Registration Statement
or a report filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use their reasonable efforts to cause such
amendment to be declared effective and the Shelf Registration
Statement and the related Prospectus to become usable for their
intended purposes as soon as practicable thereafter.
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Notwithstanding the foregoing, the FW Parties may suspend the
effectiveness of the Shelf Registration Statement by written notice to
the Holders for a period not to exceed an aggregate of 45 days in any
90-day period (each such period, a "Suspension Period") if:
(x) an event occurs and is continuing as a result of which
the Shelf Registration Statement would, in the FW Parties'
reasonable judgment, 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
(y) the FW Parties reasonably determine that the disclosure
of such event at such time would have a material adverse effect
on the business of FW Ltd. (and its subsidiaries, taken as a
whole);
provided, however, that in the event the disclosure relates to a
previously undisclosed proposed or pending material business
transaction, the disclosure of which would impede the FW Parties'
ability to consummate such transaction, the FW Parties may extend a
Suspension Period from 45 days to 60 days; provided, however, that
Suspension Periods shall not exceed an aggregate of 120 days in any
360-day period.
(ii) Except during a Suspension Period, (A) use their reasonable
efforts to prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective during
the Effectiveness Period; (B) cause the Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply
fully with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and (C) comply with the provisions
of the Securities Act with respect to the disposition of all
securities covered by the Shelf Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise the underwriter(s), if any, and selling Holders
promptly (but in any event within five Business Days) and, if
requested by such Persons, to confirm such advice in writing:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the
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Securities 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,
or
(C) except during a Suspension Period, of the existence of
any fact or the happening of any event, during the Effectiveness
Period, that makes any statement of a material fact made in the
Shelf 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 Shelf Registration Statement or the Prospectus
in order to make the statements therein not misleading.
(iv) If at any time the Commission shall issue any stop order
suspending the effectiveness of the Shelf 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, use their reasonable efforts to obtain
the withdrawal or lifting of such order at the earliest possible time.
(v) Furnish to each of the selling Holders upon request by such
selling Holders and to each of the underwriter(s), if any, before
filing with the Commission, a copy of the Shelf Registration Statement
and copies of any Prospectus included therein or any amendments or
supplements to the Shelf Registration Statement or Prospectus (other
than documents incorporated by reference after the initial filing of
the Shelf Registration Statement), which documents will be subject to
the review of such Holders and underwriter(s), if any, for a period of
at least three Business Days after the receipt thereof, and the FW
Parties will not file the Shelf Registration Statement or Prospectus
or any amendment or supplement to the Shelf Registration Statement or
Prospectus (other than documents incorporated by reference) to which a
selling Holder of Transfer Restricted Securities covered by the Shelf
Registration Statement or the underwriter(s), if any, shall reasonably
object within three Business Days after the receipt thereof. The
objection of a selling Holder or underwriter, if any, shall be deemed
to be reasonable if the Shelf Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission 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.
(vi) If reasonably requested by any selling Holders or the
underwriter(s), if any, within ten business days incorporate in the
Shelf Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may from time to time
reasonably request to have included therein, including, without
limitation: (A) information concerning such Holder and the
underwriter(s), if any, and the
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distribution of the Transfer Restricted Securities of such Holders or
underwriters(s), if any; (B) information relating to the "Plan of
Distribution" of the Transfer Restricted Securities; (C) information
with respect to the principal amount of Notes or number of shares
Common Shares being sold to such underwriter(s); (D) the purchase
price being paid therefor; and (E) any other terms of the offering of
the Transfer Restricted Securities to be sold in such offering, and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as reasonably practicable after the
FW Parties are notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment.
(vii) Furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the Shelf
Registration Statement, as first filed with the Commission, and of
each amendment thereto (and as such Person may request any documents
incorporated by reference therein or exhibits thereto (or exhibits
incorporated in such exhibits by reference)).
(viii) Deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; subject
to any notice by the FW Parties in accordance with this Section 4(b)
of the existence of any fact or event of the kind described in Section
4(b)(iii)(C), the FW Parties hereby consent to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto.
(ix) If an underwriting agreement is entered into and the
registration is an Underwritten Registration, the FW Parties shall:
(A) upon request, furnish to each selling Holder and each
underwriter, if any, in such substance and scope as they may
reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the date of
closing of any sale of Transfer Restricted Securities in an
Underwritten Registration:
(1) a certificate, dated the date of such closing,
signed by a Chief Executive Officer and the Chief Financial
Officer of FW Ltd. confirming, as of the date thereof, the
matters set forth in Section 8(j) of the Purchase Agreement;
(2) opinions, each dated the date of such closing, of
counsel to the FW Parties covering such of the matters as
are customarily covered in legal opinions to underwriters in
connection with primary underwritten offerings of
securities;
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(3) customary comfort letters, dated the date of such
closing, from the independent accountants of FW Ltd. (and
from any other accountants whose report is contained or
incorporated by reference in the Shelf Registration
Statement), in the customary form and covering matters of
the type customarily covered in comfort letters to
underwriters in connection with primary underwritten
offerings of securities; and
(4) a certificate of the Chief Financial Officer of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Corporation, in form and substance
satisfactory to such selling Holder containing statements
and information of the type satisfactory to such selling
with respect to "backlog" numbers in the Prospectus.
(B) set forth in full in the underwriting agreement, if any,
indemnification provisions and procedures which provide rights no
less protective than those set forth in Section 6 hereof with
respect to all parties to be indemnified; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
selling Holders pursuant to this clause (x).
(x) Before any public offering of Transfer Restricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and
their respective 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 or underwriter(s), if any, may reasonably 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 Shelf Registration Statement; provided,
however, that the FW Parties shall not be required (A) to register or
qualify as a foreign corporation or a dealer of securities where they
are not now so qualified or to take any action that would subject them
to the service of process in any jurisdiction where they are not now
so subject or (B) to subject themselves to taxation in any such
jurisdiction if they are not now so subject.
(xi) Cooperate with the selling Holders and the underwriter(s),
if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to be sold
and not bearing any restrictive legends (unless required by applicable
securities laws) and enable such Transfer Restricted Securities to be
in such denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two Business Days
before any sale of Transfer Restricted Securities made by such
underwriter(s).
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(xii) Use their reasonable efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to
be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities.
(xiii) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(C) hereof shall exist or have
occurred, use their reasonable efforts to prepare a supplement or
post-effective amendment to the Shelf 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 required to be stated therein or necessary to
make the statements therein not misleading.
(xiv) Provide CUSIP numbers for all Transfer Restricted
Securities not later than the effective date of the Shelf Registration
Statement and provide the Trustee under the Indenture with
certificates for the Notes that are in a form eligible for deposit
with The Depository Trust Company.
(xv) Cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by
any underwriter that is required to be retained in accordance with the
rules and regulations of the NASD.
(xvi) Otherwise use their reasonable efforts to comply with all
applicable rules and regulations of the Commission and all reporting
requirements under the rules and regulations of the Exchange Act.
(xvii) Cause the Indenture to be qualified under the TIA not
later than the effective date of the Shelf Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the holders of Notes 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 their
reasonable efforts to cause the Trustee thereunder 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.
(xviii) Cause all Common Shares issuable upon the conversion of
the Transfer Restricted Securities covered by the Shelf Registration
Statement to be listed or quoted, as the case may be, on each
securities exchange or automated quotation system on which similar
securities issued by any of the FW Parties are then listed or quoted.
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(xix) Provide promptly to each Holder upon written request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act after the effective date
of the Shelf Registration Statement.
(xx) In connection with an Underwritten Offering, if reasonably
requested by the underwriters, make appropriate officers of the FW
Parties reasonably available to the underwriters for meetings with
prospective purchasers of the Transfer Restricted Securities and
prepare and present to potential investors customary "road show"
material in a manner consistent with other new issuances of other
securities similar to the Transfer Restricted Securities.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice from the FW Parties of the existence
of any fact of the kind described in Section 4(b)(iii)(C) hereof, such Holder
will, and will use its reasonable efforts to cause any underwriter(s) in an
Underwritten Offering to, (A) hold any such notice in confidence and (B)
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the Shelf Registration Statement until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xiii) hereof; or
(ii) such Holder is advised in writing (the "Advice") by the FW
Parties 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.
If so directed by the FW Parties, each Holder will deliver to the FW Parties (at
the FW Parties' expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice of suspension.
(d) Each Holder who intends to be named as a selling Holder in the
Shelf Registration Statement shall furnish to the FW Parties in writing, within
20 Business Days after receipt of a request therefor as set forth in a
questionnaire, such information regarding such Holder and the proposed
distribution by such Holder of its Transfer Restricted Securities as the FW
Parties may reasonably request for use in connection with the Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. (The form of
the questionnaire is attached hereto as Exhibit A.) Holders that do not complete
the questionnaire and deliver it to the FW Parties shall not be named as selling
securityholders in the Prospectus or preliminary Prospectus included in the
Shelf Registration Statement and therefore shall not be permitted to sell any
Transfer Restricted Securities pursuant to the Shelf Registration Statement.
Each Holder who intends to be named as a selling Holder in the Shelf
Registration Statement shall promptly furnish to the FW Parties in writing such
other information as the FW Parties may from time to time reasonably request in
writing.
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(e) Upon the effectiveness of the Shelf Registration Statement, each
Holder shall notify the FW Parties at least three Business Days prior to any
intended distribution of Transfer Restricted Securities pursuant to the Shelf
Registration Statement (a "Sale Notice"), which notice shall be effective for
five Business Days. Each Holder of this Security, by accepting the same, agrees
to hold any communication by the FW Parties in response to a Sale Notice in
confidence.
5. Registration Expenses.
(a) All expenses incident to the FW Parties' performance of or
compliance with this Agreement shall be borne by the FW Parties regardless of
whether a Shelf Registration Statement becomes effective, including, without
limitation:
(i) all registration and filing fees and expenses (including
filings made by any Initial Purchasers or Holders with the NASD);
(ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for Common Shares to be issued upon
conversion of the Notes), messenger and delivery services and
telephone;
(iv) all fees and disbursements of counsel to the FW Parties and;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Shares 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 the FW Parties (including the expenses of any special
audit and comfort letters required by or incident to such
performance).
(b) The FW Parties shall bear their internal expenses (including,
without limitation, all salaries and expenses of their officers and employees
performing legal, accounting or other duties), the expenses of any annual audit
and the fees and expenses of any Person, including special experts, retained by
the FW Parties. Nothing herein shall mean that the FW Parties are responsible
for the payment of any fees or commissions of the underwriters or underwriters'
counsel in connection with an Underwritten Offering.
6. Indemnification and Contribution.
(a) The FW Parties shall, jointly and severally, indemnify and hold
harmless each Holder, such Holder's officers and employees and each person, if
any, who controls such Holder within the meaning of the Securities Act (each, an
"Indemnified Holder"), from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof (including, but not limited
to, any loss, claim, damage, liability or action relating to resales of the
Transfer Restricted
13
Securities), to which such Indemnified Holder may become subject, insofar as any
such loss, claim, damage, liability or action arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto; or
(ii) the omission or alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading,
and shall reimburse each Indemnified Holder promptly upon demand for any legal
or other expenses reasonably incurred by such Indemnified Holder in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the FW Parties shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in the Shelf Registration Statement or Prospectus or
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the FW Parties by or on behalf of any Holder (or its
related Indemnified Holder) specifically for use therein. The foregoing
indemnity agreement is in addition to any liability which the FW Parties may
otherwise have to any Indemnified Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the FW Parties and their officers, directors, managers and employees
and each person, if any, who controls any of the FW Parties within the meaning
of the Securities Act, from and against any loss, claim, damage or liability,
joint or several, or any action in respect thereof, to which the FW Parties or
any such officer, director, manager, employee or controlling person may become
subject, insofar as any such loss, claim, damage or liability or action arises
out of, or is based upon:
(i) any untrue statement or alleged untrue statement of any
material fact contained in the Shelf Registration Statement or
Prospectus or any amendment or supplement thereto; or
(ii) the omission or the alleged omission to state therein any
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading,
but in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the FW Parties by or on behalf
of such Holder (or its related Indemnified Holder) specifically for use therein,
and shall reimburse the FW Parties and any such officer, director, manager,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by the FW Parties or any such officer, director,
manager, employee or controlling person in connection with investigating or
defending or preparing to defend against
14
any such loss, claim, damage, liability or action as such expenses are incurred.
The foregoing indemnity agreement is in addition to any liability which any
Holder may otherwise have to the FW Parties and any such officer, director,
manager, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 6 except to the extent it has
been materially prejudiced by such failure; and provided, further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 6.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that if
a Majority of Holders shall have reasonably concluded that there may be one or
more legal defenses available to them and their respective officers, employees
and controlling persons that are different from or additional to those available
to the FW Parties and their officers, directors, managers, employees and
controlling persons, the reasonable fees and expenses of a single separate
counsel shall be paid by the FW Parties. No indemnifying party shall:
(i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld or delayed) 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, or
(ii) be liable for any settlement of any such action effected
without its written consent (which consent shall not be unreasonably
withheld or delayed), but if settled with its written consent or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of
such settlement or judgment.
(d) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability
(or action in respect thereof) referred to therein, each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the
15
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability (or action in respect thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the FW Parties from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by clause (6)(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 6(d)(i)
but also the relative fault of the FW Parties on the one hand and the
Holder on the other in connection with the statements or omissions or
alleged statements or alleged omissions that resulted in such loss,
claim, damage or liability (or action in respect thereof), as well as
any other relevant equitable considerations.
The relative benefits received by the FW Parties on the one hand and a Holder on
the other with respect to such offering and such sale shall be deemed to be in
the same proportion as the total net proceeds from the offering of the Notes
purchased under the Purchase Agreement (before deducting expenses) received by
the FW Parties, on the one hand, bear to the total proceeds received by such
Holder with respect to its sale or proposed sale of Transfer Restricted
Securities on the other. The relative fault of the parties shall be determined
by reference to 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 FW Parties on the one hand or the Holders on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
Each of the FW Parties and each Holder agree that it would not be just and
equitable if the amount of contribution pursuant to this Section 6(d) were
determined by pro rata allocation or by any other method of allocation that does
not take into account the equitable considerations referred to in the first
sentence of this paragraph (d). The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 6 shall be deemed to include, for
purposes of this Section 6, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 6, no Holder shall be required to contribute any amount in excess
of the amount by which the total price at which the Transfer Restricted
Securities purchased by it were resold exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of any 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
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this Section 6(d) are several and not joint.
7. Rule 144A. In the event neither FW Ltd. or FW LLC is subject to
Section 13 or 15(d) of the Exchange Act, each of them hereby covenants agrees
with each Holder, for so long as any Transfer Restricted Securities remain
outstanding, to make available to any Holder or beneficial owner of Transfer
Restricted Securities in connection with any sale thereof and any
16
prospective purchaser of such Transfer Restricted Securities from such Holder or
beneficial owner, the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Transfer Restricted Securities
pursuant to Rule 144A.
8. Participation in Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder unless at least 20% of
the Holders of the Transfer Restricted Securities outstanding at the time of the
Underwritten Registration participate in such Underwritten Registration and such
Holder:
(i) agrees to sell such Holder's Transfer Restricted Securities
on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and
(ii) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting
arrangements.
9. Selection of Underwriters. The Holders of Transfer Restricted
Securities covered by the Shelf Registration Statement who desire to do so may
sell such Transfer Restricted Securities in an Underwritten Offering. In any
such Underwritten Offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by a
Majority of Holders whose Transfer Restricted Securities are included in such
offering; provided, however, that such investment bankers and managers must be
reasonably satisfactory to the FW Parties.
10. Miscellaneous.
(a) Remedies. The FW Parties acknowledge and agree that any failure by
the FW Parties to comply with their obligations under Section 2 hereof may
result in material irreparable injury to 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, any Holder may
obtain such relief as may be required to specifically enforce the FW Parties'
obligations under Section 2 hereof.
(b) Adjustments Affecting Transfer Restricted Securities. The FW
Parties shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
(c) No Inconsistent Agreements. The FW Parties shall not, on or after
the date of this Agreement, enter into any agreement with respect to their
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. In addition, the FW
Parties shall not grant to any of their security holders (other than the holders
of Transfer Restricted Securities in such capacity) the right to include any of
their securities in the Shelf Registration Statement provided for in this
Agreement other than the
17
Transfer Restricted Securities. Except as described in the Offering Memorandum
dated May 24, 2001 relating to the Notes and in the Purchase Agreement, none of
the FW Parties have previously entered into any agreement (which has not expired
or been terminated) granting any registration rights with respect to their
securities to any Person, which rights conflict with the provisions hereof.
(d) Amendments and Waivers. 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 the FW Parties have obtained the
written consent of a Majority of Holders.
(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:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of Common
Shares, as the case may be; and
(ii) if to FW Ltd. or FW LLC:
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
White & Case LLP
1155 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
(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, however, that
(i) this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign acquired Transfer Restricted Securities from such Holder and (ii) nothing
contained herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any
18
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.
(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) Securities Held by the FW Parties or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage of Transfer
Restricted Securities is required hereunder, Transfer Restricted Securities held
by the FW Parties or their Affiliates shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York.
(k) Severability. If 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.
(l) 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 by the FW Parties with respect
to the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(m) Submission to Jurisdiction. FW Ltd. agrees that any legal suit,
action or proceeding against it arising out of or based upon this Agreement, may
be instituted in any United States Federal or state court sitting in the Borough
of Manhattan, The City of New York, and waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. FW Ltd. hereby agrees that service in any such action arising out of
or based on this Agreement which may be instituted in any United States or New
York State court in the Borough of Manhattan, the City of New York, New York,
may be served on it at the following address: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltd., Perryville
Corporate Park, Service Road East, 173, Clinton, New Jersey 08809-4000,
Attention: General Counsel, and expressly consents to the jurisdiction of any
such
19
court, but only in respect of any such action, and waives any other requirements
of or objections to personal jurisdiction with respect thereto. With respect to
any such action in any United States or New York State court in the Borough of
Manhattan, The City of New York, New York, service of process on FW Ltd. at the
address set forth above and written notice of such service to FW Ltd. shall be
deemed, in every respect, effective service of process upon FW Ltd.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Ltd.
By /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ Brothers Inc.
Banc of America Securities LLC
First Union Securities, Inc.
By: ▇▇▇▇▇▇ Brothers Inc.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Representative
21
Exhibit A
Form of Selling Securityholder Notice and Questionnaire
A-1