Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of April 29, 2004
By and Between
LEUCADIA NATIONAL CORPORATION
as Issuer
and
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
as Initial Purchaser
3 3/4% Convertible Senior Subordinated Notes due 2014
TABLE OF CONTENTS
Page
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1. Definitions.................................................................1
2. Shelf Registration..........................................................4
(a) Shelf Registration......................................................4
(b) Subsequent Shelf Registrations..........................................5
(c) Supplements and Amendments..............................................5
(d) Information from Holders................................................5
3. Liquidated Damages..........................................................6
4. Registration Procedures.....................................................8
5. Registration Expenses......................................................13
6. Indemnification and Contribution...........................................14
7. Rules 144 and 144A.........................................................17
8. Underwritten Registrations.................................................18
9. Miscellaneous..............................................................18
(a) No Inconsistent Agreements.............................................18
(b) Adjustments Affecting Registrable Securities...........................18
(c) Amendments and Waivers.................................................18
(d) Notices................................................................19
(e) Successors and Assigns.................................................20
(f) Counterparts...........................................................20
(g) Headings...............................................................20
(h) Governing Law..........................................................20
(i) Severability...........................................................20
(j) Securities Held by the Company or Its Affiliates.......................20
(k) Third Party Beneficiaries..............................................20
(l) Entire Agreement.......................................................21
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
April 29, 2004, by and between LEUCADIA NATIONAL CORPORATION, a New York
corporation (the "Company"), and ▇▇▇▇▇▇▇▇▇ & COMPANY, INC. ("Jefferies").
This Agreement is entered into in connection with the Purchase
Agreement, dated April 29, 2004 (the "Purchase Agreement"), by and between the
Company and the Initial Purchaser, which provides for the sale by the Company to
the Initial Purchaser of $300,000,000 aggregate principal amount of the
Company's 3 3/4% Convertible Senior Subordinated Notes due 2014 (the "Firm
Notes"), which are convertible into common shares of the Company, par value
$1.00 per share (the "Underlying Shares"), plus up to an additional $50,000,000
aggregate principal amount of the same that the Initial Purchaser may
subsequently elect to purchase pursuant to the terms of the Purchase Agreement
(the "Additional Notes" and, together with the Firm Notes, the "Convertible
Notes"). The Convertible Notes are being issued pursuant to an indenture dated
as of the date hereof (the "Indenture") between the Company and HSBC Bank USA,
as Trustee.
In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchaser and any subsequent
Holder (as defined below). The execution and delivery of this Agreement is a
condition to the Initial Purchaser's obligation to purchase the Firm Notes under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the
following meanings:
Additional Notes: See the second introductory paragraph hereto.
Agreement: See the first introductory paragraph hereto.
Amount of Registrable Securities: (a) With respect to Convertible
Notes constituting Registrable Securities, the aggregate principal amount of all
such Convertible Notes outstanding, (b) with respect to Underlying Shares
constituting Registrable Securities, the aggregate number of such Underlying
Shares outstanding multiplied by the Conversion Price (as defined in the
Indenture relating to the Convertible Notes upon the conversion of which such
Underlying Shares were issued) in effect at the time of computing the Amount of
Registrable Securities or, if no such Convertible Notes are then outstanding,
the last Conversion Price that was in effect under such Indenture when any such
Convertible Notes were last outstanding, and (c) with respect to combinations
thereof, the sum of (a) and (b) for the relevant Registrable Securities.
Business Day: Any day that is not a Saturday, Sunday, or a day on
which banking institutions in New York are authorized or required by law to be
closed.
Closing Date: April 29, 2004.
Company: See the first introductory paragraph hereto.
Conversion Price: Shall have the meaning ascribed to it in the
Indenture.
Convertible Notes: See the second introductory paragraph hereto.
Damages Payment Date: See Section 3(c) hereof.
Depositary: The Depository Trust Company until a successor is
appointed by the Company.
Effectiveness Date: The 180th day after the latest date of original
issuance of the Convertible Notes.
Effectiveness Period: See Section 2(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Filing Date: The 120th day after the latest date of original issuance
of the Convertible Notes.
Firm Notes: See the second introductory paragraph hereto.
Holder: Any holder of Registrable Securities.
Indemnified Holder: See Section 6 hereof.
Indemnified Person: See Section 6 hereof.
Indemnifying Person: See Section 6 hereof.
Indenture: See the second introductory paragraph hereto.
Initial Purchaser: See the first introductory paragraph hereto.
Initial Shelf Registration: See Section 2(a) hereof.
Inspectors: See Section 4(n) hereof.
Liquidated Damages: See Section 3(a) hereof.
NASD: See Section 4(q) hereof.
Notice and Questionnaire: See Section 2(d) hereof.
Notice and Questionnaire Deadline: See Section 2(d) hereof.
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Person: An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
QIU: See Section 4(q) hereof.
Records: See Section 4(n) hereof.
Registrable Securities: All Convertible Notes and all Underlying
Shares upon original issuance thereof and at all times subsequent thereto until
the earliest to occur of (i) a Registration Statement covering such Convertible
Notes and Underlying Shares having been declared effective by the SEC and such
Convertible Notes and Underlying Shares have been disposed of in accordance with
such effective Registration Statement, (ii) such Convertible Notes and
Underlying Shares having been sold in compliance with Rule 144 or could (except
with respect to affiliates of the Company within the meaning of the Securities
Act) be sold in compliance with Rule 144(k), and (iii) such Convertible Notes
and any Underlying Shares cease to be outstanding.
Registration Default: See Section 3(a) hereof.
Registration Statement: Any registration statement of the Company
filed with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
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SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Registration: See Section 2(b) hereof.
Shelf Registration Statement: See Section 2(b) hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
Suspension Period: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Trustee: The trustee under the Indenture.
Underlying Shares: See the second introductory paragraph hereto.
Underwritten registration or underwritten offering: A registration in
which securities of the Company are sold to an underwriter (which term, for
purposes of this Agreement, shall include a Person deemed to be an underwriter
within the meaning of Section 2(11) of the Securities Act) for reoffering to the
public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering (except to the extent provided in Section 2(d)) all of the
Registrable Securities (the "Initial Shelf Registration") on or prior to the
Filing Date. The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by Holders in the manner or manners designated by them. The Company shall
not permit any securities other than the Registrable Securities to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below).
The Company shall use its reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act as promptly
as practicable but not later than the Effectiveness Date and to keep such
Initial Shelf Registration continuously effective under the Securities Act until
the date that is two years from the date the Initial Shelf Registration
Statement is filed (as it may be shortened pursuant to clause (i) or clause (ii)
immediately following, the "Effectiveness Period"), or such shorter period
ending when (i) all the Registrable Securities covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) all the Registrable Securities (x) held by
Persons who are not affiliates of the Company may be resold pursuant to Rule
144(k) under the Securities Act or (y) cease to be outstanding or (iii) a
Subsequent Shelf Registration (as defined below) covering all of the Registrable
Securities has been declared effective under the Securities Act.
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(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
or any Subsequent Shelf Registration (as defined below) ceases to be effective
for any reason at any time during the Effectiveness Period (other than because
of the sale of all of the securities registered thereunder), the Company shall
use its reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend the Initial Shelf Registration or any
Subsequent Shelf Registration, as the case may be, in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement pursuant to Rule 415 covering all of the
Registrable Securities (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Company shall use its reasonable best efforts
to cause the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
Registration Statement continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days during
which the Initial Shelf Registration or any Subsequent Shelf Registration was
previously continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf Registration and
the term "Shelf Registration Statement" means any Registration Statement filed
in connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall promptly supplement
and amend the Shelf Registration if required by the rules, regulations, or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of the majority in Amount of Registrable Securities covered by such
Registration Statement or by any underwriter of such Registrable Securities.
(d) Information from Holders. The Company shall provide a notice and
questionnaire (together, the "Notice and Questionnaire") to each Holder
containing substantially the information called for by the Notice and
Questionnaire attached as Annex B to the Offering Circular of the Company dated
April 22, 2004 relating to the Notes, requesting such information as the Company
may reasonably require 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 not fewer than 30
calendar days prior to the time the Company intends in good faith to have the
Shelf Registration Statement declared effective (the "Notice and Questionnaire
Deadline"). No Holder shall be entitled to be named as a selling securityholder
in the Shelf Registration Statement, and no Holder shall be entitled to use the
Prospectus that is part of the Shelf Registration Statement for offers and
resales of Registrable Securities at any time, unless such Holder has returned a
completed and signed Notice and Questionnaire to the Company by the deadline for
response set forth therein. Holders shall, however, have at least 20 calendar
days from the date on which the Questionnaire is first mailed to them to return
a completed and signed Questionnaire to the Company. Each Holder as to which any
Shelf Registration is being effected agrees to furnish promptly to the Company
all information required to be disclosed so that the information previously
furnished to the Company by such seller is not materially misleading and does
not omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the circumstances
under which they were made.
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Beneficial owners of Registrable Securities who have not returned a
Notice and Questionnaire by the Notice and Questionnaire Deadline may receive
another Notice and Questionnaire upon request from the Company. Upon receipt of
a completed and signed Notice and Questionnaire prior to the Effectiveness Date,
the Company will include the Registrable Securities covered thereby in the Shelf
Registration Statement.
In connection with all such requests for information from Holders, the
Company shall notify such Holders of the requirements set forth above. No Holder
shall be entitled to Liquidated Damages pursuant to Section 3 hereof unless such
Holder shall have provided all such reasonably requested information.
3. Liquidated Damages.
(a) The Company and the Initial Purchaser agree that the Holders will
suffer damages if the Company fails to fulfill its obligations under Section 2
hereof and that it would not be feasible to ascertain the extent of such damages
with precision. Accordingly, the Company agrees to pay liquidated damages on the
Convertible Notes that are Registrable Securities ("Liquidated Damages") under
the circumstances and to the extent set forth below (each of which shall be
given independent effect; each a "Registration Default"):
(i) if the Initial Shelf Registration is not filed on or prior to the
Filing Date, then commencing on the day after the Filing Date, Liquidated
Damages shall accrue on the Convertible Notes that are Registrable
Securities at an amount per week per $1,000 principal amount of Convertible
Notes that are Registrable Securities equal to $0.05 for the first 90 days
immediately following the Registration Default, with such Liquidated
Damages increasing by an additional $0.05 per week per $1,000 principal
amount of Convertible Notes that are Registrable Securities with respect to
each subsequent 90-day period, up to a maximum of $0.25 per week per $1,000
principal amount of Convertible Notes that are Registrable Securities;
(ii) if the Initial Shelf Registration is not declared effective by
the SEC on or prior to the Effectiveness Date, then commencing on the day
after the Effectiveness Date, Liquidated Damages shall accrue on the
Convertible Notes that are Registrable Securities at an amount per week per
$1,000 principal amount of Convertible Notes that are Registrable
Securities equal to $0.05 for the first 90 days immediately following the
Registration Default, with such Liquidated Damages increasing by an
additional $0.05 per week per $1,000 principal amount of Convertible Notes
that are Registrable Securities with respect to each subsequent 90-day
period, up to a maximum of $0.25 per week per $1,000 principal amount of
Convertible Notes that are Registrable Securities; and
(iii) if a Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective (and such failure to be effective
is not cured within five business days by a post-effective amendment or a
report filed pursuant to the Exchange Act) at any time during the
Effectiveness Period (other than as permitted under Section 3(b)),
Liquidated Damages shall accrue on the Convertible Notes that are
Registrable Securities at an amount per week per $1,000 principal amount of
Convertible Notes that are Registrable Securities equal to $0.05 for the
first 90 days immediately following the Registra-
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tion Default, with such Liquidated Damages increasing by an additional
$0.05 per week per $1,000 principal amount of Convertible Notes that are
Registrable Securities with respect to each subsequent 90-day period, up to
a maximum of $0.25 per week per $1,000 principal amount of Convertible
Notes that are Registrable Securities;
provided, however, that Liquidated Damages on the Convertible Notes that are
Registrable Securities may not accrue under more than one of the foregoing
clauses (i), (ii) or (iii) at any one time; provided, further, however, that (1)
upon the filing of the Shelf Registration as required hereunder (in the case of
clause (a)(i) of this Section 3), (2) upon the effectiveness of the Shelf
Registration as required hereunder (in the case of clause (a)(ii) of this
Section 3) or (3) upon the effectiveness of a Shelf Registration which had
ceased to remain effective (in the case of (a)(iii) of this Section 3),
Liquidated Damages on the Convertible Notes that are Registrable Securities as a
result of such clause, shall cease to accrue. It is understood and agreed that,
notwithstanding any provision to the contrary, so long as any Convertible Note
that is a Registrable Security is then covered by an effective Shelf
Registration Statement, no Liquidated Damages shall accrue on such Convertible
Note that is a Registrable Security. The parties have agreed that actual damages
for the Company's violation of its obligations under Section 2 are difficult to
determine and that the sole monetary remedy for any such violation shall be
Liquidated Damages.
(b) Notwithstanding any other provisions of this Agreement to the
contrary, if (i) the Company determines, in its good faith judgment, that the
disclosure of an event or development, or the filing of a required filing with
the SEC would have a material adverse impact on the Company or (ii) the
disclosure of an event or development, or the filing of a required filing with
the SEC is otherwise related to a material business transaction that has not yet
been publicly disclosed (each of the foregoing is referred to herein as a
"Suspension Period"), the Company shall be entitled to suspend any registration
referred to in Section 2, provided, however, that a Suspension Period shall not
prevent the accrual of Liquidated Damages from occurring or continuing to the
extent a Suspension Period exceeds an aggregate of 135 days in any twelve-month
period.
(c) So long as any Convertible Notes remain outstanding, the Company
shall notify the Trustee within two Business Days after each and every date on
which an event occurs in respect of which Liquidated Damages is required to be
paid. Any amounts of Liquidated Damages due pursuant to (a)(i), (a)(ii) or
(a)(iii) of this Section 3 will be payable in cash semi-annually on each
interest payment date under the Indenture (each a "Damages Payment Date"),
commencing with the first such date occurring after any such Liquidated Damages
commences to accrue, to Holders to whom regular interest is payable on such
Damages Payment Date with respect to Convertible Notes that are Registrable
Securities. The amount of Liquidated Damages for Registrable Securities will be
determined by multiplying the applicable rate of Liquidated Damages by the
principal amount of all Convertible Notes that are Registrable Securities
outstanding on the Damages Payment Date following such Registration Default in
the case of the first such payment of Liquidated Damages with respect to a
Registration Default (and thereafter at the next succeeding Damages Payment Date
until the cure of such Registration Default), multiplied by a fraction, the
numerator of which is the number of days such Liquidated Damages rate was
applicable during such period (determined on the basis of a 360-day year
comprised of
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twelve 30-day months and, in the case of a partial month, the actual number of
days elapsed), and the denominator of which is 360.
4. Registration Procedures.
In connection with the filing of any Registration Statement pursuant
to Section 2 hereof, the Company shall effect such registrations to permit the
resale of the securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant thereto and in connection with
any Registration Statement filed by the Company hereunder the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date a
Registration Statement or Registration Statements as prescribed by Section
2 hereof and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall
furnish to and afford the Holders of the Registrable Securities covered by
such Registration Statement, a single counsel to such Holders (chosen in
accordance with Section 5(b)), and the managing underwriter, if any, a
reasonable opportunity to review copies of all such documents proposed to
be filed (in each case, where possible, at least four Business Days prior
to such filing, or such date as is reasonable under the circumstances). The
Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in Amount of
Registrable Securities covered by such Registration Statement, their
counsel, or the managing underwriter, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period;
cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) promulgated
under the Securities Act; and use all reasonable best efforts to comply
with the provisions of the Securities Act and the Exchange Act applicable
to it with respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as so
supplemented. The Company shall be deemed not to have used its reasonable
best efforts to keep a Registration Statement effective during the
Effectiveness Period if it voluntarily takes any action that would result
in selling Holders of the Registrable Securities covered thereby not being
able to sell such Registrable Securities during that period unless such
action is required by applicable law or unless the Company complies with
this Agreement, including, without limitation, the provisions of Sections
4(c)(ii), 4(c)(iii), 4(c)(iv) and 4(k) hereof.
(c) Notify the selling Holders, a single counsel to such Holders
(chosen in accordance with Section 5(b)), and the managing underwriter, if
any, promptly (but in any event within two (2) Business Days) and, confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
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has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, at the sole
expense of the Company, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference, and
exhibits), (ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any preliminary Prospectus or the initiation of any
proceedings for that purpose, (iii) of the happening of any event, the
existence of any condition, or any information becoming known that makes
any statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any changes
in or amendments or supplements to such Registration Statement, Prospectus
or documents so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, unless such event, condition, or information has
otherwise been publicly disclosed by the Company through a press release or
Exchange Act filing, and (iv) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus and, if any such
order is issued, to use its reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If requested by the managing underwriter or underwriters, if any,
or the Holders of the majority in Amount of Registrable Securities being
sold in connection with an underwritten offering, (i) promptly incorporate
in a Prospectus supplement or post-effective amendment such information as
the managing underwriter or underwriters, if any, such Holders, or counsel
for any of them reasonably determine is necessary to be included therein,
(ii) make all required filings of such Prospectus supplement of such
post-effective amendment as soon as reasonably practicable after the
Company has received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment, and (iii) supplement or
amend such Registration Statement.
(f) Furnish to each selling Holder, a single counsel to such Holders
(chosen in accordance with Section 5(b)), and each managing underwriter, if
any, at the sole expense of the Company, one conformed copy of the
Registration Statement or post-effective amendment thereto, including
financial statements but excluding schedules, and if requested in writing,
all documents incorporated or deemed to be incorporated therein by
reference, and all exhibits.
(g) Deliver to each selling Holder, a single counsel to such Holders
(chosen in accordance with Section 5(b)), and the underwriters, if any, at
the sole expense of the
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Company, as many copies of the Prospectus (including each form of
preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of Section 4 hereof, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to use its
reasonable best efforts to register or qualify, to the extent required by
applicable law, and to cooperate with the selling Holders, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities or offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, or the managing underwriter or
underwriters, if any, reasonably request; provided, however, that where
Registrable Securities are offered other than through an underwritten
offering, the Company agrees to cause the Company's counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 4(h); keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Registrable Securities covered by
the applicable Registration Statement; provided, however, that the Company
shall not be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction
where it is not then so subject, or (C) subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) Cooperate with the selling Holders and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing shares of Registrable Securities to be sold,
which certificates shall not bear any restrictive legends and shall be in a
form eligible for deposit with The Depository Trust Company; and enable
such shares of Registrable Securities to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or Holders may reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by any Shelf Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Securities, except as may be required solely as a consequence
of the nature of such selling Holder's business, in which case the Company
will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
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(k) Upon the occurrence of any event contemplated by paragraph
4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as practicable prepare
and (subject to Section 4(a) hereof) file with the SEC, at the sole expense
of the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by reference, or
file any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, any such
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit
with The Depository Trust Company and (ii) provide required CUSIP numbers
for the Registrable Securities.
(m) In connection with any underwritten offering of Registrable
Securities pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of securities similar
to the Registrable Securities and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order
to expedite or facilitate the registration or the disposition of such
Registrable Securities and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters
with respect to the business of the Company and its subsidiaries (including
any acquired business, property, or entity, if applicable) and the
Registration Statement, Prospectus, and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, as are
customarily made by issuers to underwriters in underwritten offerings of
securities similar to the Registrable Securities and confirm the same in
writing if and when requested; (ii) obtain the written opinion of counsel
to the Company and written updates thereof in form, scope, and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters, and covering the matters customarily covered
in opinions requested in underwritten offerings of securities similar to
the Registrable Securities and such other matters as may be reasonably
requested by the managing underwriter or underwriters; and (iii) obtain
"cold comfort" letters and updates thereof in form, scope, and substance
reasonably satisfactory to the managing underwriter or underwriters from
the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included or incorporated by reference in the Registration Statement),
addressed to each of the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of securities similar to
the Registrable Securities and such other matters as reasonably requested
by the managing underwriter or underwriters as permitted by the Statement
on Auditing Standards No. 72. The above shall be done as and to the extent
required by such underwriting agreement.
-11-
(n) Make available for inspection by any selling Holder, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant, or other agent retained
by any such selling Holder or underwriter (collectively, the "Inspectors"),
at the offices where normally kept, during reasonable business hours at
such time or times as shall be mutually convenient for the Company and the
Inspectors as a group, all relevant financial and other records, pertinent
corporate documents, and instruments of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities, and cause
the officers, directors, and employees of the Company and its subsidiaries
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and any Records that it
notifies the Inspectors are confidential shall not be disclosed by any
Inspector unless (i) the disclosure of such Records is necessary to avoid
or correct a material misstatement or material omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is, in the opinion of
counsel for any Inspector, necessary or advisable in connection with any
action, claim, suit, or proceeding directly involving or potentially
involving such Inspector and arising out of, based upon, relating to, or
involving this Agreement or any transactions contemplated hereby or arising
hereunder, (iv) the information in such Records has been made generally
available to the public other than through the acts of such Inspector;
provided, however, that prior notice shall be provided as soon as
practicable to the Company of the potential disclosure of any information
by such Inspector pursuant to clause (ii) or (iii) of this sentence to
permit the Company to obtain a protective order (or waive the provisions of
this paragraph (n)) and that such Inspector shall take such actions as are
reasonably necessary to protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not inconsistent with,
an impairment of, or in derogation of the rights and interests of any
Holder or Inspector, or (v) the information in such Records has been made
generally available to the public other than as a result of a breach of
this Agreement.
(o) Provide (i) the Holders to be included in such Registration
Statement and not more than one counsel for all such Holders, (ii) the
underwriters, if any, thereof, (iii) the sales or placement agent, if any,
thereof, and (iv) one counsel for such underwriters or agents, reasonable
opportunity to participate in the preparation of such Registration
Statement, each prospectus included therein or filed with the SEC, and each
amendment or supplement thereto.
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal
-12-
quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(q) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD"), including, if the
Conduct Rules of the NASD or any successor thereto as amended from time to
time so require, engaging a "qualified independent underwriter" ("QIU") as
contemplated therein and making Records available to such QIU as though it
were a participating underwriter for the purposes of Section 4(n) and
otherwise applying the provisions of this Agreement to such QIU (including
indemnification) as though it were a participating underwriter.
(r) Cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the
Trustee and the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect such changes
and all other forms and documents required to be filed with the SEC to
enable the Indenture to be so qualified in a timely manner. In the event
that any amendment or modification referred to in this Section 4(r)
involves the appointment of a new Trustee under the Indenture, the Company
shall appoint a new Trustee thereunder pursuant to the applicable
provisions of the Indenture.
(s) Use its reasonable best efforts to take all other steps necessary
or advisable to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby.
Each Holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon actual receipt of any notice from the Company
of the happening of any event of the kind described in Section 4(c)(ii),
4(c)(iii) or 4(c)(iv) hereof or of a suspension pursuant to Section 3(b) hereof,
such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(k) hereof, or until it is advised in writing by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company shall be borne by the Company, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the
-13-
Registrable Securities and determination of the eligibility of the Registrable
Securities for investment under the laws of such jurisdictions as provided in
Section 4(h) hereof)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with Depository and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriter or underwriters, if any,
or by the Holders of the majority in Amount of Registrable Securities included
in any Registration Statement, (iii) messenger, telephone, and delivery expenses
incurred by the Company, (iv) fees and disbursements of counsel for the Company
and reasonable fees and disbursements of a single counsel (chosen in accordance
with Section 5(b)) for the sellers of Registrable Securities (subject to the
provisions of Section 5(b) hereof), (v) fees and disbursements of all
independent certified public accountants referred to in Section 4(m)(iii) hereof
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) Securities
Act liability insurance, if the Company desires such insurance, (vii) fees and
expenses of all other Persons retained by the Company, (viii) internal expenses
of the Company (including, without limitation, all salaries and expenses of
officers and employees of the Company performing legal or accounting duties),
(ix) the expense of any annual audit, (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, if applicable, and (xi) the expenses relating to printing, word
processing, and distributing all Registration Statements, underwriting
agreements, securities sales agreements, and any other documents necessary in
order to comply with this Agreement. Notwithstanding anything in this Agreement
to the contrary, each Holder shall pay all underwriting discounts and brokerage
commissions with respect to any Registrable Securities sold by it.
(b) The Company shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of a majority
in Amount of Registrable Securities to be included in such Registration
Statement, and such counsel shall be reasonably acceptable to the Company.
6. Indemnification and Contribution.
The Company agrees to indemnify and hold harmless (i) the Initial
Purchaser and its affiliates, (ii) each Holder and its affiliates, (iii) each
Person, if any, who controls (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act) any of the foregoing (any of
the Persons referred to in this clause (iv) being hereinafter referred to as a
"controlling person"), and (v) the respective officers, directors, partners,
employees, representatives, and agents of the Initial Purchaser, the Holders
(including predecessor Holders) or any controlling person (any person referred
to in clause (i), (ii), (iii), or (iv) may hereinafter be referred to as an
"Indemnified Holder"), from and against any and all losses, claims, damages,
liabilities, and judgments (including, without limitation, reasonable 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 or
Prospectus, or any amendment or supplement thereto or any related preliminary
Prospectus, 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 were made, not
misleading, except insofar as such losses, claims, dam-
-14-
ages, 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 Holder furnished to the Company in writing by such
selling Holder expressly for use therein; provided that, with respect to any
such untrue statement in or omission from any preliminary Prospectus, this
indemnity will not apply in the event that (a) a copy of the related Prospectus
(excluding any documents incorporated by reference therein) was not sent or
given by such Initial Purchaser or selling Holder and (b) the untrue statement
in or omission from such preliminary Prospectus was corrected in the related
Prospectus, unless, in either case, such failure to deliver the Prospectus was a
result of noncompliance by the Company with the provisions of Section 4 hereof.
In connection with any underwritten offering, the Company will also indemnify
the underwriters, if any, selling brokers, dealers, and similar securities
industry professionals participating in the distribution, their respective
affiliates, and each Person who controls such Persons (within the meaning of the
Securities Act and the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holders, if requested in connection with
any Registration Statement.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, its directors, officers, affiliates, and each Person who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Holder, but only with reference to such
losses, claims, damages, or liabilities which are caused by any untrue statement
or omission or alleged untrue statement or omission made in reliance upon and in
conformity with information relating to a Holder furnished to the Company in
writing by such Holder expressly for use in any Registration Statement or
Prospectus, or any amendment or supplement thereto or any related preliminary
prospectus.
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 either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person or Persons against whom such indemnity may be sought (each an
"Indemnifying Person") in writing, and the Indemnifying Person shall not be
relieved from any liability that it may have to an Indemnified Person otherwise
than under this Section 6. Such 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 that the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the fees and expenses of such counsel related to such proceeding; provided,
however, that the failure to so notify the Indemnifying Person shall not relieve
the Indemnifying Person from any obligation or liability which it may have
hereunder or otherwise except to the extent (but only to the extent) that it
shall be finally determined by a court of competent jurisdiction (which
determination is not subject to appeal) that the Indemnifying Person has been
materially prejudiced by such failure. 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)
such Indemnifying Person and the Indemnified Person shall have mutually agreed
to the contrary, (ii) such Indemnifying Person has failed within a reasonable
time to retain counsel reasonably satisfactory to such Indemnified Person, or
(iii) the named parties in any such proceeding (including any impleaded parties)
include an Indemnifying Person
-15-
and an Indemnified Person and the Indemnified Person shall have reasonably
concluded that there may be one or more legal defenses available to it that are
different from or in addition to those available to any such Indemnifying
Person. It is understood that an Indemnifying Person shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm for the
Indemnified Holders shall be designated in writing by the Holders of the
majority in Amount of Registrable Securities, and any such separate firm for the
Company, its directors, respective officers, and such control Persons of the
Company 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, such Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses actually incurred by
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be liable
for any settlement effected without its consent pursuant to this sentence if the
Indemnifying Person is contesting, in good faith, the request for reimbursement.
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 reasonably could
have been a party and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (i) includes an unconditional release
of such Indemnified Person, in form and substance satisfactory to such
Indemnified Person, from all liability on claims that are the subject matter of
such proceeding and (ii) does not include a statement as to or an admission of
fault, culpability, or a failure to act by or on behalf of any Indemnified
Person.
If the indemnification provided for in the first and second paragraphs
of this Section 6 is unavailable to an Indemnified Person or insufficient in
respect of any losses, claims, damages, or liabilities referred to therein, then
each Indemnifying Person under such paragraph, 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 Indemnifying Person on the one hand, and the
Indemnified Person on the other hand, pursuant to the Purchase Agreement or from
the offering of the Registrable Securities pursuant to any Shelf Registration 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 Indemnifying Person on the one hand, and the Indemnified Person 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 benefits received by the Company on the one hand,
and any Indemnified Holder on the other, shall be deemed to be in the same
proportion as the total net proceeds from the initial of-
-16-
fering and sale of Convertible Notes before deducting expenses received by the
Company bear to the total net proceeds received by such Indemnified Holder from
sales of Registrable Securities giving rise to such obligations. The relative
fault of the parties shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or such Indemnified Holder and the parties' relative
intent, knowledge, access to information, and opportunity to correct or prevent
such statement or omission and any other equitable considerations appropriate
under the circumstances.
The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation 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 incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, in no event shall any Holder
be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Registrable Securities
pursuant to a Shelf Registration Statement exceeds the amount of damages which
such Holder would have 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
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
The indemnity and contribution agreements contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Company, its officers or directors, or any other Person controlling the Company,
and (iii) acceptance of and payment for any of the Registrable Securities.
7. Rules 144 and 144A.
The Company covenants that it will file the reports required to be
filed by it under the Exchange Act and the rules and regulations adopted by the
SEC thereunder in a timely manner in accordance with the requirements of the
Exchange Act and, for so long as any Registrable Securities remain outstanding,
if at any time the Company is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Securities, make
available such information as is necessary to permit sales pursuant to Rule 144A
under the Securities Act. The Company further covenants that, for so long as any
Registrable Securities remain outstanding, it will use its reasonable best
efforts to take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the
-17-
limitation of the exemptions provided by (a) Rule 144(k) and Rule 144A under the
Securities Act, as such rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. Notwithstanding the
foregoing, nothing in this Section 7 shall be deemed to require the Company to
register any of its securities pursuant to the Exchange Act.
8. Underwritten Registrations.
If any of the Registrable Securities covered by any Shelf Registration
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 the majority in Amount of Registrable Securities to be
included in such offering and will be reasonably acceptable to the Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable 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 reasonably
required under the terms of such underwriting arrangements.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof.
The Company has not entered and will not enter into any agreement with
respect to any of its securities that will grant to any Person piggyback
registration rights with respect to a Registration Statement, except to the
extent any existing right has heretofore been waived.
(b) Adjustments Affecting Registrable Securities. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified, or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, otherwise than with the prior
written consent of the Company and the Holders of not less than the majority in
Amount of Registrable Securities; provided, however, that Section 6 and this
Section 9(c) may not be amended, modified, or supplemented without the prior
written consent of the Company and each Holder (including, in the case of an
amendment, modification, or supplement of Section 6, any Person who was a Holder
of Registrable Securities disposed of pursuant to any Registration Statement).
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders of Registrable Securities whose securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect, impair,
limit, or compromise
-18-
the rights of other Holders of Registrable Securities may be given by Holders of
at least a majority in Amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier, or facsimile:
(i) if to a Holder of the Registrable Securities, at the most current
address of such Holder set forth on the records of the registrar under the
Indenture, in the case of Holders of Convertible Notes, and the stock
ledger of the Company, in the case of Holders of common stock of the
Company.
(ii) if to the Initial Purchaser:
▇▇▇▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
with copies to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
(iii) if to the Company:
Leucadia National Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Secretary
with copies to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
-19-
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS SITTING IN MANHATTAN,
NEW YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void, or unenforceable, the remainder of the terms, provisions,
covenants, and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired, or invalidated, and the
parties hereto shall use their best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant, or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants, and restrictions without including any
of such that may be hereafter declared invalid, illegal, void, or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be deemed as outstanding in determining whether such
consent or approval was given by the Holders of such required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Securities are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
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(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations, and memoranda between the Initial Purchaser on
the one hand, and the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest, or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LEUCADIA NATIONAL CORPORATION
By:
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Name:
Title:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice Chairman