EXHIBIT 4.2
EXECUTION VERSION
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$545,000,000 9.625% Senior Notes due 2012
REGISTRATION RIGHTS AGREEMENT
Dated as of September 30, 2002
by and among
MDP ACQUISITIONS PLC,
MDCP ACQUISITIONS I
and
DEUTSCHE BANK AG LONDON
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
and
The Several Initial Purchasers Listed in Schedule I
to the Purchase Agreement (as hereinafter defined)
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This Registration Rights Agreement (this "AGREEMENT") is made and entered
into as of September 30, 2002, by and among MDP Acquisitions plc, a public
limited company incorporated under the laws of Ireland (the "COMPANY"), MDCP
Acquisitions I, an unlimited public company incorporated under the laws of
Ireland (the "GUARANTOR" and together with the Company, the "ISSUERS") and
Deutsche Bank AG London and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, as representatives (the
"Representatives") of the initial purchasers set forth in Schedule I to the
Purchase Agreement (as defined below) (each such initial purchaser and
Representative an "INITIAL PURCHASER" and, collectively, the "INITIAL
PURCHASERS"), each of whom has agreed to purchase the Company's 9.625% Senior
Notes due 2012 in aggregate principal amount of $545,000,000 (the "SERIES A
NOTES") pursuant to the Purchase Agreement.
This Agreement is made pursuant to the Purchase Agreement, dated
September 23, 2002 (the "PURCHASE AGREEMENT"), by and among the Issuers and the
Initial Purchasers. In order to induce the Initial Purchasers to purchase the
Series A Notes, the Issuers have 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 5 of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Indenture, dated September 30,
2002, by and among the Issuers and Deutsche Bank Trust Company Americas, as
Trustee (the "TRUSTEE"), relating to the Series A Notes and the Series B Notes
(as defined in Section 1 herein) (the "DOLLAR INDENTURE").
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.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in the City of
New York on which banks are authorized or ordered to close.
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 Series B Notes
to be issued in the Exchange Offer, (b) the maintenance of such Exchange Offer
Registration Statement continuously effective and the keeping of such Exchange
Offer open for a period not less than the minimum period required pursuant to
Section 3(b) hereof and (c) the delivery by the Company to (i) the Dollar
Book-entry Depositary (as defined in the Dollar Deposit and Custody Agreement)
of the Series B Notes (in
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the case of notes in bearer form) or (ii) the Registrar (as defined in the
Dollar Indenture) of the Series B Notes to be registered (in the case of notes
in definitive form), in each case in the same aggregate principal amount as the
aggregate principal amount of Series A Notes tendered by the Holders thereof
pursuant to the Exchange Offer.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a) hereof.
EURO EXCHANGE NOTES: Notes issued in exchange for the Company's 10.125%
U.S. dollar-denominated Senior Notes due 2012 in aggregate principal amount of
$350,000,000.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a principal
amount of Series B Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of
Series A 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.
GUARANTOR: The Guarantor defined in the preamble hereto and any Person
which becomes a guarantor of Notes after the date hereof pursuant to the terms
of the Dollar Indenture.
HOLDER: As defined in Section 2 hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INDEMNIFIED PERSON: As defined in Section 8(c) hereof.
INDEMNIFYING PERSON: As defined in Section 8(c) hereof.
LIQUIDATED DAMAGES: As defined in Section 5 hereof.
NOTES: Series A Notes and Series B Notes (including guarantees thereof by
the Guarantor).
PERSON: An individual, partnership, limited liability company, corporation,
trust, unincorporated organization, or a government or agency or political
subdivision thereof.
PRIVATE EXCHANGE: As defined in Section 3(c) hereof.
PRIVATE EXCHANGE NOTES: As defined in Section 3(c) 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.
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RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Issuers relating
to (a) an offering of any Series B Notes (including guarantees thereof by the
Guarantors) 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.
RULE 144: Rule 144 promulgated under the Act.
SERIES B NOTES: The Company's 9.625% Series B Senior U.S.
dollar-denominated Notes due 2012 to be issued pursuant to the Dollar Indenture:
(i) in the Exchange Offer or (ii) as contemplated by Section 4 hereof.
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, as amended.
TRANSFER RESTRICTED SECURITIES: Each Note, until the earliest to occur of
(a) the date on which such Note is exchanged in an Exchange Offer and entitled
to be resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) the date on which such Note has
been disposed of in accordance with a Shelf Registration Statement, (c) the date
on which such Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by an Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein) or (d) the date on
which such Note is distributed to the public pursuant to Rule 144 under the Act.
SECTION 2. HOLDERS
In this agreement, "HOLDER" means (i) for so long as the Notes are
represented by Global Notes (as defined in the Dollar Indenture), the bearer
thereof which shall initially be the Dollar Book-Entry Depositary (as defined in
the Dollar Deposit and Custody Agreement) and (ii) in the event that Definitive
Notes (as defined in the Dollar Indenture) are issued, the Person in whose name
a Note is registered on the Registrar's books.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law or policy of the Commission (after the procedures set forth in
Section 6(a)(i) below have been complied with), the Issuers shall use all
commercially reasonable efforts to (i) cause the Exchange Offer Registration
Statement to be filed with the Commission on or prior to the date that is 90
days after the Closing Date (such 90th day being the "FILING DEADLINE"), (ii)
cause such
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Exchange Offer Registration Statement to become effective on or prior to the
date that is 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 Series B 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, use all commercially reasonable efforts
to commence and Consummate the Exchange Offer within 30 days. The Exchange Offer
shall be on the appropriate form permitting registration of the Series B Notes
to be offered in exchange for the Series A Notes that are Transfer Restricted
Securities and to permit resales of Series B Notes by any Broker-Dealer that
tendered into the Exchange Offer for Series A Notes that such Broker-Dealer
acquired for its own account as a result of market making activities or other
trading activities (other than Series A Notes acquired directly from the Company
or any of its Affiliates) as contemplated by Section 3(c) below.
(b) The Issuers shall use all commercially reasonable 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. The Issuers shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Series B Notes and the guarantees thereof, and the Euro Exchange Notes and
the guarantees thereof, shall be included in the Exchange Offer Registration
Statement. The Issuers shall use all commercially reasonable efforts to cause
the Exchange Offer to be Consummated on or prior to the date that is 30 Business
Days after the Exchange Offer Registration Statement has become effective, or
longer, if required by the federal securities laws.
(c) The Issuers shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer Registration Statement and indicate
therein that (i) 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 the Company or any Affiliate of the Company),
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 Series B
Notes received by such Broker-Dealer in the Exchange Offer and (ii) the
Prospectus contained in the Exchange Offer Registration Statement may be used 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.
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To the extent necessary to ensure that the Exchange Offer
Registration Statement is available for sales of Series B Notes by
Broker-Dealers, the Issuers agree, in the event either of them receives notice
from a Broker-Dealer within 20 Business Days of the Consummation of the Exchange
Offer that such Broker-Dealer holds Transfer Restricted Securities that were
acquired for the account of such Broker-Dealer as a result of market-making or
similar activities, to use all commercially reasonable 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 day on which the Exchange Offer is Consummated, or such
shorter period as will terminate when all Transfer Restricted Securities covered
by such Registration Statement have been sold pursuant thereto. The Issuers
shall promptly provide sufficient copies of the latest version of such
Prospectus to such Broker-Dealers promptly upon request, and in no event later
than two Business Days after such request, at any time during such period.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Series A Notes acquired by them and having, or which are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, the Company, upon the written request of the Initial
Purchasers simultaneously with the delivery of the Series B Notes in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "PRIVATE EXCHANGE") for such Series A Notes held by the Initial Purchasers
a like principal amount of Notes of the Company, that are substantially
identical in all material respects to the Series B Notes (the "PRIVATE EXCHANGE
NOTES") (and which are issued pursuant to the same indenture as the Series B
Notes) except for the placement of a restrictive legend on such Private Exchange
Notes. The Private Exchange Notes shall bear the same CUSIP number, if any, ISIN
number and Common Code as the Series B Notes to the extent permitted by the
CUSIP Service Bureau of Standard & Poor's and other applicable organizations.
Interest on the Series B Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Securities surrendered in exchange therefor or if no interest has been paid on
the Securities from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer
with an address in London, England, which may be either the Trustee or an
affiliate of the Trustee;
(3) permit Holders to withdraw tendered Notes at any time prior
to the close of business, London time, on the last business day on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
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As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Series A Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee or Authenticating Agent (as defined
in the Dollar Indenture) for cancellation all Series A Notes so accepted
for exchange; and
(3) cause each Trustee promptly to authenticate and deliver to
each Holder of the Series A Notes, Series B Notes or Private Exchange
Notes, as the case may be, in global form in aggregate principal amount
equal to the respective Series A Notes so accepted for exchange, as further
set forth in the Dollar Indenture.
The Series B Notes and the Private Exchange Notes may be issued
under (i) the Dollar Indenture or (ii) indenture substantially identical in all
material respects to the Dollar Indenture which in either event shall provide
that (1) the Series B Notes shall not be subject to the transfer restrictions
set forth in the Dollar Indenture and (2) the Private Exchange Notes shall be
subject to the transfer restrictions set forth in the Dollar Indenture. The
Dollar Indenture or such indenture substantially identical in all material
respects to the Dollar Indenture shall provide that the Series B Notes, Private
Exchange Securities and Series A Notes shall vote and consent together on all
matters as one class and that none of the Series B Notes, Private Exchange
Securities or Securities will have the right to vote or consent as a separate
class on any matter.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Exchange Offer is not permitted by
applicable law or policy of the Commission (after the Issuers have complied with
the procedures set forth in Section 6(a)(i) below) or (ii) any Holder of
Transfer Restricted Securities shall notify the Company in writing within 20
Business Days following the Consummation of the Exchange Offer that (A) upon
advice of counsel such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not resell the Series
B 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 Series A Notes acquired directly from
the Company or any of its Affiliates, then the Issuers shall:
(x) use all commercially reasonable efforts to cause to be filed, on or
prior to 60 days after the earlier of (i) the date on which the Company
determines that the Exchange Offer Registration Statement cannot be filed as a
result of clause (a)(i) above and (ii) the date on which the Company 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")), relating to all Transfer Restricted Securities
of Holders which shall have provided the information required pursuant to
Section 4(b) hereof, provided, however, that nothing in this section 4(a)(x)
shall require filing of a Shelf Registration Statement prior to the Filing
Deadline for an Exchange Offer Registration Statement; and
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(y) use all commercially reasonable efforts to cause such Shelf
Registration Statement to become effective on or prior to 120 days after the
Filing Deadline (such 120th day the "EFFECTIVENESS DEADLINE").
If, after the Issuers have filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law or
policy of the Commission (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, the Issuers
shall remain obligated to meet the Effectiveness Deadline set forth in clause
(y).
The Issuers shall use all commercially reasonable 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 the other Securities required
to be registered therein pursuant to Section 6(b) hereof) 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 a
period of at least two years (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.
(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
the Company in writing, within 10 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 (it being understood that Liquidated Damages shall cease to accrue
for the benefit of any Holder who fails to provide such information). Each
selling Holder agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading. The Issuers shall not be obligated to
supplement such Shelf Registration Statement after it has been declared
effective by the Commission more than four times per quarterly period to reflect
additional Holders.
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 within 30 Business Days after the Exchange Offer Registration
Statement is first declared effective by the Commission or (iv)
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subject to Section 6(c)(i), any Registration Statement required by this
Agreement is filed and declared effective but thereafter ceases to be effective
or fails to be usable for its intended purpose without being succeeded
immediately within 5 Business days by a post-effective amendment to such
Registration Statement that cures such failure and that is itself declared
effective immediately (each such event referred to in clauses (i) through (iv),
a "REGISTRATION DEFAULT"), then, subject to Section 4(b), the Issuers hereby
jointly and severally agree to pay to each Holder of Transfer Restricted
Securities affected thereby liquidated damages ("LIQUIDATED DAMAGES"), with
respect to the first 90-day period immediately following the occurrence of the
first Registration Default in an amount equal to a per annum rate of 0.25% on
the principal amount of Transfer Restricted Securities held by such Holder. The
amount of Liquidated Damages described in the preceding sentence shall increase
by an additional per annum rate of 0.25% with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of Liquidated Damages for all Registration Defaults of 1.00% PER ANNUM on the
principal amount of Notes constituting Transfer Restricted Securities; PROVIDED
that the Issuers 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 (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (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 usable
in the case of (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 applicable, shall cease.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Dollar
Indenture, on each Interest Payment Date, as more fully set forth in the Dollar
Indenture and the Notes. All obligations of the Issuers 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, the Issuers shall (x) comply with all applicable provisions of
Section 6(c) below, (y) use all commercially reasonable efforts to effect such
exchange and to permit the resale of Series B Notes by any Broker-Dealer that
tendered in the Exchange Offer Series A Notes that such Broker-Dealer acquired
for its own account as a result of its market making activities or other trading
activities (other than Series A Notes acquired directly from the Company 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 the Company
raises a substantial question as to
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whether the Exchange Offer is permitted by applicable federal law, the
Issuers hereby agree to seek a no-action letter or other favorable decision
from the Commission allowing the Issuers to Consummate an Exchange Offer
for such Transfer Restricted Securities. The Issuers hereby agree to pursue
the issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Issuers hereby agree 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
the Company 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 the Company, prior to the Consummation of the Exchange Offer, a
written representation to the Issuers (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 the Company, (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
Series B Notes to be issued in the Exchange Offer and (C) it is acquiring
the Series B Notes in its ordinary course of business. Each Holder using
the Exchange Offer to participate in a distribution of the Series B Notes
hereby acknowledges and agrees that, if the resales are of Series B Notes
obtained by such Holder in exchange for Notes acquired directly from the
Company 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, the Issuers shall provide a supplemental letter to the
Commission (A) stating that the Issuers 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 the Issuers have not entered into any arrangement or
understanding with any Person to distribute the Series B Notes to be
received in the Exchange Offer and that, to the best of the Issuers'
information and belief, each Holder participating in the Exchange Offer is
acquiring the Series B Notes in its ordinary course of business and has no
arrangement or
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understanding with any Person to participate in the distribution of the
Series B Notes received in the Exchange Offer and (C) 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, the Issuers shall comply with all the provisions of
Section 6(c) below and shall use all commercially reasonable 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 the Company pursuant to Section
4(b) hereof), and pursuant thereto the Issuers 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, the Issuers shall:
(i) use all commercially reasonable efforts to keep such
Registration Statement continuously 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 an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein (in light of the
circumstances in which they were made) not misleading or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Issuers shall file promptly an
appropriate amendment to such Registration Statement curing such defect,
and, if Commission review is required, use all commercially reasonable
efforts to cause such amendment to be declared effective as soon as
practicable. Notwithstanding the foregoing, if the Board of Directors of
the Company determines in good faith that it is in the best interests of
the Issuers not to disclose the existence of facts surrounding any proposed
or pending material corporate transaction or other material development
involving the Issuers, the Issuers may allow the Shelf Registration to fail
to be effective or the Prospectus contained therein to be unusable as a
result of such nondisclosure for up to 60 days in any year during the
two-year period of effectiveness required by Section 4 hereof and provided
that a Registration Default would not occur during such period.
(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
applicable period set forth in Section 3 or 4 hereof, as the case may be;
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
11
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) with respect to a Shelf Registration Statement, advise the
selling Holders 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, (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 of 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, the
Issuers shall use all commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(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, is the
light of the circumstances under which they were made, not misleading;
(v) furnish to the Initial Purchasers and with respect to a
Shelf Registration Statement, each selling Holder named in any Registration
Statement or Prospectus in connection with such 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 Holders in connection
with such sale, if any, for a period of five Business Days, and the Company
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
12
reference) to which the selling Holders of the Transfer Restricted
Securities covered by such Registration Statement in connection with such
sale, if any, shall reasonably object within five Business Days after the
receipt thereof. A selling Holder 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) with respect to a Shelf Registration Statement, promptly
prior to the filing of any document that is to be incorporated by reference
into a Registration Statement or Prospectus, provide copies of such
document to the selling Holders, upon the reasonable request of such
selling Holders, in connection with such sale, if any, and make the
Issuers' representatives available to discuss customary due diligence
matters;
(vii) with respect to a Shelf Registration Statement, subject to
appropriate confidentiality agreements being entered into, make available
at reasonable times for inspection by the selling Holders participating in
any disposition pursuant to such Registration Statement and any attorney or
accountant retained by such selling Holders, all financial and other
records, pertinent corporate documents of the Issuers and cause the
Issuers' officers, directors and employees to supply all information
reasonably requested by any such selling Holder, 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) with respect to a Shelf Registration Statement, if requested
by any selling Holders in connection with such sale, if any, promptly
include in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as
such selling Holders may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be Included
in such Prospectus supplement or post-effective amendment;
(ix) with respect to a Shelf Registration Statement, furnish to
each selling Holder in connection with such sale, if any, 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) with respect to a Shelf Registration Statement, deliver to
each selling Holder, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Issuers hereby consent
to the use (in accordance with law) of the Prospectus and any amendment or
supplement thereto by each of the selling Holders in connection with the
offering and the sale of the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
13
(xi) with respect to a Shelf Registration Statement, upon the
request of Holders who collectively hold an aggregate principal amount of
Notes in excess of 20% of the amount of outstanding Transfer Restricted
Securities (the "Requesting Holders"), enter into an underwriting agreement
and make such representations and warranties and take all such other
actions in connection therewith as may be reasonable and customary in
underwritten offerings in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be reasonably
requested by the Requesting Holders in connection with any sale or resale
pursuant to any applicable Shelf Registration Statement; provided, however,
that the Issuers shall not be obligated to enter into any such underwriting
agreement on more than four occasions. In such connection, the Issuers
shall:
(A) upon the reasonable request of the Requesting Holders,
furnish (or in the case of paragraph (2) below, use all commercially
reasonable efforts to cause to be furnished) to each Requesting
Holder, upon the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on behalf
of the Company and each Guarantor by (x) the President or
any Vice President and (y) a principal financial or
accounting officer of the Company and such Guarantor,
confirming, as of the date thereof, the matters, to the
extent applicable, set forth in paragraphs (a) and (b) of
Section 6 of the Purchase Agreement and such other similar
matters as such Holders may reasonably request; and
(2) a customary comfort letter or letters, dated the
date of effectiveness of the Shelf Registration Statement,
from the Company'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 6(f) of
the Purchase Agreement; and
(B) deliver such other documents and certificates as may
be reasonably requested by the Requesting Holders to evidence
compliance with clause (A) above and with any customary conditions
contained in any agreement entered into by the Issuers 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 none of the
Issuers shall be required to register or qualify as a foreign corporation
where such Issuer is not now so qualified or to take any action that would
subject such Issuer to the service of process in suits or to taxation,
other than as to
14
matters and transactions relating to the Registration Statement, in any
jurisdiction where such Issuer is not now so subject;
(xiii) issue, upon the request of any Holder of Series A Notes
covered by any Shelf Registration Statement contemplated by this Agreement,
Series B Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder, such Series B
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Series B Notes; in return, the Series A Notes held by
such Holder shall be surrendered to the Company 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 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 which are in a form eligible
for deposit;
(xv) provide an ISIN number and Common Code 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 Dollar Indenture with printed certificates
for the Transfer Restricted Securities which are in a form eligible for
deposit;
(xvi) otherwise use all commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to their 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);
(xvii) unless the rating in effect for the Series A Notes is
equally applicable and in effect for the Series B Notes and the Transfer
Restricted Securities, use its best efforts to cause the Transfer
Restricted Securities covered by a Registration Statement or the Series B
Notes, as the case may be, to be rated with the appropriate rating
agencies;
(xviii) make an application to list the Series B Notes on the
Luxembourg Stock Exchange and to use its best efforts to have the Series B
Notes admitted to trading on the Luxembourg Stock Exchange as promptly as
practicable and thereafter maintain such listing;
(xix) cause the Dollar 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
to effect such changes to the Dollar Indenture as may be required for such
Dollar Indenture to be so qualified in accordance
15
with the terms of the TIA; and execute and use all commercially reasonable
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 Dollar Indenture to be so
qualified in a timely manner; and
(xx) provide promptly to each Holder, upon written 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 SELLING HOLDERS. With respect to a shelf
registration statement, each selling Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referred to in Section
6(c)(iii)(C) or any notice from the Company of the existence of any fact of the
kind described in Section 6(c)(i) or Section 6(c)(iii)(D) hereof (in each case,
a "SUSPENSION NOTICE"), such Holder 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 Holder is
advised in writing by the Company 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
DATE"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
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 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 Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' performance of or compliance
with this Agreement will be borne by the Company, 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 Series B Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Issuers; (v) all application and filing fees in connection with listing the
Series B Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; (vi) all fees and disbursements of
independent certified public accountants of the Issuers (including the expenses
of any comfort letters required by or incident to such performance); and (vii)
rating agency fees, if any, and any fees associated with making the Exchange
Securities eligible for trading through the Depository Trust Company ("DTC").
16
The Company will, in any event, bear its and the Guarantor's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), and the
expenses of any Person retained by the Issuers.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuers will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, unless another firm shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuers, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls any Holder
within the meaning of either Section 15 of the Act or Section 20 of the Exchange
Act (any of the persons referred do in this clause (ii) being hereinafter
referred to as a "controlling person") and (iii) the respective officers,
directors, partners, employees, representatives and agents of any Holder or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "INDEMNIFIED HOLDER") from and against any and
all losses, claims, damages and liabilities (including without limitation the
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by 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 if
the Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any of the Holders furnished
in writing to the Company by such Holder expressly for use therein.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Issuers, their directors, their
officers and each person who controls the Issuers within the meaning of either
Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as
the foregoing indemnity from the Issuers to each of the Indemnified Holders, but
only with reference to information relating to such Indemnified Holder furnished
in writing to the Company by such Indemnified Holder expressly for use in any
Registration Statement or any amendment or supplement thereto.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to Section 8(a)
or 8(b) hereof, such person (the "INDEMNIFIED PERSON") shall promptly notify the
person against whom such indemnity may be
17
sought (the "INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may designate in such proceeding and shall pay the fees and
expenses of such counsel related to such proceeding. In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Person has failed within
a reasonable time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such reasonable fees
and expenses shall be reimbursed as they are incurred. Any such separate firm
for the Indemnified Holders shall be designated in writing by a majority of the
Indemnified Holders and any such separate firm for the Issuers, their directors,
their officers and such control persons shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify any Indemnified Person from and against any loss or
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the prior written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in Section 8(a) or 8(b) is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person, in lieu of indemnifying such Indemnified Person thereunder, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the one
hand and the Indemnified Holder on the other hand from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Issuers on the one hand and the Indemnified Holder on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Issuers on the one hand and the
Indemnified Holder 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 the Issuers or by the Indemnified Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
18
The Issuers and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by pro rata
allocation (even if the Holders or the Issuers were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities 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
Person in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, in no event shall a Holder or
its related Indemnified Holders be required to contribute any amount in excess
of the amount by which the total received by such Holder with respect to the
sale of 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 that 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 the
Transfer Restricted Securities held by each Holder hereunder and not joint. The
Issuers' obligations to contribute pursuant to this Section 8 are joint and
several.
The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
SECTION 9. RULE 144A AND OTHER INFORMATION
The Issuers hereby agree with each Holder, for so long as any
Transfer Restricted Securities remain outstanding and during any period in which
the Issuers (i) are not subject to Section 13 or 15(d) of the Exchange Act, to
make available within a reasonable period of time to the Initial Purchasers and,
upon written 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) are subject to
Section 13 or 15(d) of the Exchange Act, to make all filings required thereby in
a timely manner in order to permit resales of Transfer Restricted Securities
pursuant to Rule 144.
SECTION 10. UNDERWRITTEN REGISTRATIONS
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Issuers.
19
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder unless such Holder (a) 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 (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
SECTION 11. MISCELLANEOUS
(a) REMEDIES. The Issuers acknowledge and agree that any failure by the
Issuers to comply with their 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 the Issuers' obligations under Sections 3 and 4
hereof. The Issuers further agree to waive the defense in any action for
specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Issuers will 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. 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 the Issuers' 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), the Company has obtained the written consent
of Holders of all outstanding Transfer Restricted Securities and (ii) in the
case of all other provisions hereof, the Company 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 the
Company 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 the Issuers, 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 its rights or the rights of Holders hereunder.
20
(e) ACKNOWLEDGEMENT. It is hereby agreed and acknowledged by the Issuers
that the Series B Notes to be issued pursuant to this agreement represent the
same debt already in existence in respect of the Series A Notes.
(f) 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 Dollar Indenture, with a copy to the Registrar
under the Dollar Indenture; and
(ii) if to the Issuers:
MDP Acquisitions plc
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ Limited
With a copy to;
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
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 telescoped; 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 Dollar Indenture.
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to the Initial
Purchasers in the form attached hereto as Exhibit A.
(g) 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 Dollar Indenture. If any transferee of any Holder shall acquire
21
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.
(h) 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.
(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) SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE;
WAIVER. To the fullest extent permitted by applicable law, the Issuers
irrevocably submit to the non-exclusive jurisdiction of any federal or state
court in the Borough of Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any suit or proceeding based on or
arising under this Agreement, and irrevocably agree that all claims in respect
of such suit or proceeding may be determined in any such court. The Issuers, to
the fullest extent permitted by applicable law, irrevocably and fully waive the
defense of an inconvenient forum to the maintenance of such suit or proceeding
and hereby irrevocably designate and appoint National Registered Agents, Inc.
(the "AUTHORIZED AGENT"), for the later of a period of ten years or until such
time as no Notes are outstanding as its authorized agent upon whom process may
be served in any such suit or proceeding. The Issuers represent that they have
separately notified the Authorized Agent of such designation and appointment and
that the Authorized Agent has accepted the same in writing. The Issuers hereby
irrevocably authorize and direct its Authorized Agent to accept such service.
The Issuers further agree that service of process upon its Authorized Agent and
written notice of said service to the Company or the Guarantor, as the case may
be, mailed by first class mail or delivered to its Authorized Agent shall be
deemed in every respect effective service of process upon the Company or the
Guarantor, as the case may be, in any such suit or proceeding. Nothing herein
shall affect the right of any person to serve process in any other manner
permitted by law. The Issuers agree that a final action in any such suit or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other lawful manner. Notwithstanding the
foregoing, any action against the Company or the Guarantor arising out of or
based on this Agreement or the transactions contemplated hereby may also be
instituted by any of the Initial Purchasers, their respective officers and
employees or any person who controls any of the Initial Purchasers within the
meaning of the Securities Act in any competent court in Ireland, and the Issuers
expressly accept the jurisdiction of any such court in any such action.
Each of the Company and the Guarantor irrevocably waive, to the
extent permitted by law, any immunity to jurisdiction to which it may otherwise
be entitled (including,
22
without limitation, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby.
The provisions of this Section 11(j) are intended to be effective
upon the execution of this Agreement without any further action by the Company
or the Initial Purchasers and the introduction of a true copy of this Agreement
into evidence shall be conclusive and final evidence as to such matters.
(l) CURRENCY INDEMNITY. The Issuers shall indemnify each Indemnified
Holder against any loss incurred by it as a result of any judgment or order
being given or made and expressed and paid in a currency (the "JUDGMENT
CURRENCY") other than U.S. dollars and as a result of any variation as between
(i) the rate of exchange at which the U.S. dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in New York, New York at which such Indemnified Holder on the
date of payment of such judgment or order is able to purchase U.S. dollars with
the amount of the Judgment Currency actually received by such Indemnified
Holder. If the U.S. dollars so purchased are greater than the amount originally
due to such Indemnified Holder hereunder, such Indemnified Holder agrees to pay
to the Company an amount equal to the excess of the U.S. dollars so purchased
over the amount originally due to such Indemnified Holder hereunder. The
foregoing shall constitute a separate and independent obligation of the Issuers
and the Indemnified Holders, as the case may be, and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "spot rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of, or conversion into, U.S. dollars.
(m) 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.
(n) 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.
EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER REGISTRATION STATEMENT
To: Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
From: MDP Acquisitions plc
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ Limited
Fax: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Re: 9.625% Senior Notes Due 2012
Date: ___________, 200_
For your information only (NO ACTION REQUIRED):
Today, _____________, 200_, we filed [an Exchange Registration
Statement] [a Shelf Registration Statement] with the Securities and Exchange
Commission.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
MDP ACQUISITIONS PLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Director
DEUTSCHE BANK AG LONDON
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BY: DEUTSCHE BANK AG LONDON
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
BY: DEUTSCHE BANK AG LONDON
BY: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BY:
-----------------------------
Name:
Title:
(as representatives for the Initial Purchasers
named in Schedule I to the Purchase Agreement)
DEUTSCHE BANK AG LONDON
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BY: DEUTSCHE BANK AG LONDON
BY:
-----------------------------
Name:
Title:
BY: DEUTSCHE BANK AG LONDON
BY:
-----------------------------
Name:
Title:
BY: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
(as representatives for the Initial Purchasers
named in Schedule I to the Purchase Agreement)