EXHIBIT 4.2
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LEUCADIA NATIONAL CORPORATION
$500,000,000 7-1/8% SENIOR NOTES DUE MARCH 15, 2017
REGISTRATION RIGHTS AGREEMENT
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March 6, 2007
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Leucadia National Corporation, a New York corporation (the
"COMPANY"), is issuing and selling to ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "INITIAL
PURCHASER"), upon the terms set forth in a purchase agreement, dated as of March
1, 2007 (the "PURCHASE AGREEMENT"), $500,000,000 aggregate principal amount at
maturity of the Company's 7-1/8% Senior Notes due March 15, 2017. As an
inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Company agrees with the Initial Purchaser, for the benefit of the holders of the
Securities (as defined below) (including, without limitation, the Initial
Purchaser), as follows:
1. DEFINITIONS.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
ADVICE: See the last paragraph of Section 5.
AGREEMENT: This Registration Rights Agreement.
APPLICABLE PERIOD: See Section 2(f).
BUSINESS DAY: Any day, other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York or at a place of payment are
authorized or obligated by law, regulation or executive order to be closed.
CLOSING DATE: March 6, 2007.
CONTROLLING PERSON: See Section 7(a).
DTC: See Section 5(i).
EFFECTIVENESS DATE: The 180th day following the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT: See Section 4(a).
EVENT DATE: See Section 4(a).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE OFFER REGISTRATION STATEMENT: See Section 2(a).
EXCHANGE SECURITIES: The 7-1/8% Senior Notes due March 15, 2017 of
the Company, identical in all respects to the Notes, except for restrictive
legends and references to this Agreement, to be issued under the Indenture.
FILING DATE: The 120th day following the Closing Date.
HOLDER: Each holder of Registrable Securities.
HOLDER INDEMNIFIED PARTIES: See Section 7(a).
INDEMNIFIED PARTY: See Section 7(c).
INDEMNIFYING PARTIES: See Section 7(c).
INDENTURE: The Indenture, dated as of the date hereof, between the
Company and The Bank of New York, as trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time, in accordance with
the terms thereof.
INITIAL SHELF REGISTRATION: See Section 3(a).
LOSSES: See Section 7(a).
LIQUIDATED DAMAGES ACCRUAL AMOUNT: With respect to any Event, an
amount in addition to the interest on the Registrable Securities of 0.25% per
annum for the first 90-day period immediately following the applicable Event
Date, increased by an additional 0.25% per annum with respect to each subsequent
90-day period, up to a maximum amount of 1.25% per annum.
MAXIMUM CONTRIBUTION AMOUNT: See Section 7(d).
NASD: The National Association of Securities Dealers, Inc.
PARTICIPATING BROKER-DEALER: See Section 2(f).
PERSON: An individual, trustee, corporation, limited liability
company, partnership, limited liability partnership, joint stock company, joint
venture, trust, unincorporated organization or association, government or any
agency or political subdivision thereof, union, business association, firm or
other entity.
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PRIVATE EXCHANGE: See Section 2(g).
PRIVATE EXCHANGE SECURITIES: See Section 2(g).
PROSPECTUS: The prospectus included in a Registration Statement at
the time that such Registration Statement is declared effective (including,
without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act), as amended or supplemented by
any prospectus supplement with respect to the terms of the offering of any
portion of the Securities covered by such Registration Statement, 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.
REGISTRATION DEFAULT PERIOD: Each period during which an Event has
occurred and is continuing.
REGISTRABLE SECURITIES: Any of the Notes, the Private Exchange
Securities and the Exchange Securities received in the Exchange Offer that may
not be sold without restriction under federal or state securities law.
REGISTRATION STATEMENT: Any registration statement of the Company
that covers any of the Securities and that is filed pursuant to the provisions
of this Agreement, including the Prospectus included therein, all amendments and
supplements to such registration statement and Prospectus (including
post-effective amendments), all exhibits thereto and all material incorporated
by reference or deemed to be incorporated by reference therein.
RULE 144: Rule 144 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 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 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.
SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
SECURITIES ACT: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
SHELF EFFECTIVENESS DATE: With respect to a Shelf Registration,
the 90th day after the filing of such Shelf Registration.
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SHELF FILING DATE: With respect to a Shelf Registration, the 30th
day following (i) in the case of an Initial Shelf Registration, delivery of the
Shelf Notice triggering the obligation to file such Initial Shelf Registration,
and (ii) in the case of a Subsequent Shelf Registration, the cessation of
effectiveness of the prior Shelf Registration.
SHELF NOTICE: See Section 2(i).
SHELF REGISTRATION: The Initial Shelf Registration and any
Subsequent Shelf Registration.
SPECIAL COUNSEL: Counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if any, the
trustee under any indenture governing the Exchange Securities or the Private
Exchange Securities.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an underwriter
for reoffering to the public.
2. EXCHANGE OFFER.
(a) The Company shall:
(i) prepare and file with the SEC promptly after the date hereof,
but in no event later than the Filing Date, a registration statement (the
"EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the
Securities Act with respect to a proposed offer (the "EXCHANGE Offer") to
the Holders to issue and deliver to such Holders, in exchange for the
Notes, a like aggregate principal amount of Exchange Securities;
(ii) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective as promptly as practicable
after the filing thereof, but in no event later than the Effectiveness
Date;
(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective until the consummation of the Exchange
Offer pursuant to its terms; and
(iv) unless the Exchange Offer would not be permitted by a policy
of the SEC, commence the Exchange Offer and use its reasonable best
efforts to, on or prior to 45 days after the Exchange Offer Registration
Statement is declared effective, consummate the Exchange Offer and issue
Exchange Securities in exchange for all Notes tendered prior thereto in
the Exchange Offer.
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The Exchange Offer shall not be subject to any conditions, other
than that the Exchange Offer does not violate Applicable Law or any applicable
interpretation of the staff of the SEC. The term "APPLICABLE LAW" means ay
federal, state, local or foreign statute, law (including, without limitation,
common law) or ordinance, or judgment, decree, rule, regulation or order of any
federal, state local or other governmental authority, governmental or regulatory
agency or body, court, arbitrator or self-regulatory organization, domestic or
foreign.
(b) The Exchange Securities shall be issued under, and entitled to the
benefits of, the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA).
(c) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal that is an exhibit to the Exchange Offer
Registration Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required by
Applicable Law);
(iii) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(v) otherwise comply with all laws applicable to the Exchange
Offer.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Notes, Exchange Securities equal in aggregate principal amount
to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and each Private Exchange
Security will accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the date of original issue of the Notes. Each Exchange
Security and each Private Exchange Security shall bear interest at the rate set
forth thereon; provided, that interest with respect to the period prior to the
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issuance thereof shall accrue at the rate or rates borne by the Notes
surrendered in exchange therefor from time to time during such period.
(f) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
containing a summary statement of the positions taken or policies made by the
staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a "PARTICIPATING Broker-Dealer"). Such "Plan of Distribution"
section shall also allow the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including (without
limitation) all Participating Brokers-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Securities. The Company shall use its reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective and to amend
and supplement the Prospectus to be lawfully delivered by all Persons subject to
the prospectus delivery requirement of the Securities Act for the shorter of (i)
such period of time as such Persons must comply with such requirements in order
to resell the Exchange Securities and (ii) the period ending when all
Registrable Securities covered by the Exchange Offer Registration Statement have
been sold pursuant thereto (the "APPLICABLE PERIOD").
(g) If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having the status as an unsold
allotment in the initial distribution of the Notes, the Company shall, upon the
request of the Initial Purchaser, simultaneously with the delivery of the
Exchange Securities in the Exchange Offer, issue (pursuant to the same indenture
as the Exchange Securities and subject to transfer restrictions thereon) and
deliver to the Initial Purchaser, in exchange for the Notes held by the Initial
Purchaser (the "PRIVATE EXCHANGE"), a like principal amount of debt securities
of the Company that are identical to the Exchange Securities (the "PRIVATE
EXCHANGE SECURITIES"). The Private Exchange Securities shall bear the same CUSIP
number as the Exchange Securities.
(h) The Company may require each Holder participating in the Exchange
Offer to represent to the Company that, at the time of the consummation of the
Exchange Offer: (i) any Exchange Securities received by such Holder in the
Exchange Offer will be acquired in the ordinary course of its business; (ii)
such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities within the meaning of
the Securities Act or resale of the Exchange Securities in violation of the
Securities Act; (iii) if such Holder is not a broker-dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities; (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, that it will deliver a
prospectus, as required by law, in connection with any resale of such Exchange
Securities; and (v) if such Holder is an affiliate of the Company, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act applicable to it.
(i) If: (i) prior to the consummation of the Exchange Offer, the Company
or the Holders of a majority in aggregate principal amount of Registrable
Securities determines in its or their reasonable judgment that (A) the Exchange
Securities would not, upon receipt, be tradeable by the Holders thereof without
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restriction under the Securities Act and the Exchange Act and without material
restrictions under applicable Blue Sky or state securities laws or (B) the
interests of the Holders under this Agreement, taken as a whole, would be
materially adversely affected by the consummation of the Exchange Offer; (ii)
applicable interpretations of the staff of the SEC would not permit the
consummation of the Exchange Offer; (iii) subsequent to the consummation of the
Private Exchange, any Holder of Private Exchange Securities so requests; (iv)
the Exchange Offer is not consummated within 225 days of the Closing Date for
any reason; or (v) in the case of (A) any Holder prohibited by law or SEC policy
from participating in the Exchange Offer, (B) any Holder participating in the
Exchange Offer that receives Exchange Securities that may not be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company within the meaning of
the Securities Act) or (C) any broker-dealer that holds Notes acquired directly
from the Company or any of their respective affiliates and, in each such case
contemplated by this clause (v), such Holder notifies the Company within 20
Business Days (provided that if a Holder has delivered a notice within such time
period, any other Holder meeting the requirements set forth in clause (v)(A),
(B) or (C) may thereafter submit a notice up to and including the date that is
20 Business Days following the Shelf Filing Date) following consummation of the
Exchange Offer, then the Company shall promptly (and in any event within five
Business Days) deliver to the Holders (or in the case of an occurrence of any
event described in clause (v) of this Section 2(i), to any such Holder) and the
Trustee notice thereof (the "SHELF NOTICE") and shall as promptly as possible
thereafter (but in no event later than the Shelf Filing Date) file an Initial
Shelf Registration pursuant to Section 3; provided, that no Holder (other than
the Initial Purchaser) shall be entitled to have Securities held by it covered
by such Shelf Registration unless such Holder agrees to be bound by all of the
provisions of this Agreement applicable to such Holder.
3. SHELF REGISTRATION.
If a Shelf Notice is required to be delivered pursuant to clause
(i), (ii), (iii) or (iv) of Section 2(i), then this Section 3 shall apply to all
Registrable Securities. Otherwise, upon consummation of the Exchange Offer in
accordance with Section 2, the provisions of this Section 3 shall apply solely
with respect to (i) Notes held by any Holder thereof not permitted to
participate in the Exchange Offer, (ii) Notes held by any broker-dealer that
acquired such Notes directly from the Company or any of their respective
affiliates, and (iii) Exchange Securities that are not freely tradeable, in each
case, as contemplated by clause (v) of Section 2(i).
(a) Initial Shelf Registration. The Company shall prepare and file with
the SEC a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 covering all of the Registrable Securities (the
"INITIAL SHELF REGISTRATION") subject to the Company's right pursuant to Section
3(c) to exclude the Registrable Securities of Holders that have not provided the
information required to be furnished by such Holders pursuant to Section 3(c)
hereof. The Company shall file with the SEC the Initial Shelf Registration as
promptly as possible following the occurrence of the event described in Section
2(i) which triggered such filing obligation, but in no event later than the
Shelf Filing Date. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable Securities
for resale by such Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The Company
(i) shall not permit any securities other than the Registrable Securities to be
included in any Shelf Registration, and (ii) shall use its reasonable best
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efforts to cause the Initial Shelf Registration to be declared effective under
the Securities Act as promptly as practicable after the filing thereof (but in
no event later than the Shelf Effectiveness Date) and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date that
is 24 months after the date it is declared effective (subject to extension
pursuant to the last paragraph of Section 5) (the "EFFECTIVENESS PERIOD"), or
such shorter period ending when (i) all 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) a Subsequent Shelf
Registration covering all of the Registrable Securities has been declared
effective under the Securities Act, (iii) such Registrable Securities are
eligible for resale pursuant to Rule 144(k) under the Securities Act or (iv)
there ceases to be any outstanding Registrable Securities.
(b) Subsequent Shelf Registrations. If any Shelf Registration ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the Registrable 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 30 days of such cessation of effectiveness file an amendment
to the Shelf Registration in a manner reasonably expected 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 as promptly
as practicable after such filing and to keep such Subsequent Shelf Registration
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, and any previously filed Subsequent Shelf Registration, was
previously effective.
(c) Provision of Information. The Company may exclude from any Shelf
Registration the Registrable Securities of any Holder who, without a reasonable
basis, fails to furnish to the Company in writing, within 20 days after receipt
of a written request therefor, the information specified in Item 507 or 508, as
applicable, of Regulation S-K under the Securities Act for use in connection
with any Shelf Registration or Prospectus or preliminary prospectus included
therein. No such Holder shall be entitled to liquidated damages pursuant to
Section 4 unless and until such Holder shall have provided such information.
Each Holder whose Registrable Securities are to be included in a Shelf
Registration Statement agrees to promptly furnish to the Company all additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
4. LIQUIDATED DAMAGES.
(a) The Company acknowledges and agrees that the Holders will suffer
damages, and that it would not be feasible to ascertain the extent of such
damages with precision, if the Company fails to fulfill its obligations
hereunder. Accordingly, in the event of such failure, the Company agrees to pay
liquidated damages to each Holder under the circumstances and to the extent set
forth below:
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(i) if the Exchange Offer Registration Statement has not been
filed with the SEC on or prior to the Filing Date;
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the Effectiveness Date; or
(iii) if the Company has not exchanged Exchange Securities for all
Notes validly tendered in accordance with the terms of the Exchange Offer
within 45 days after the date on which the Exchange Offer Registration
Statement is declared effective by the SEC;
(iv) if obligated to file an Initial Shelf Registration and the
Company fails to file such Initial Shelf Registration with the SEC on or
prior to Shelf Filing Date;
(v) if an Initial Shelf Registration is filed and such Initial
Shelf Registration is not declared effective on or prior to the Shelf
Effectiveness Date; or
(vi) if a Shelf Registration is filed and declared effective by the
SEC but thereafter ceases to be effective without being succeeded within
30 days by a Subsequent Shelf Registration filed and declared effective;
(each of the foregoing an "EVENT," and the date on which the Event occurs being
referred to herein as an "EVENT DATE").
Upon the occurrence of any Event, the Company shall pay, or cause to
be paid, in addition to amounts otherwise due under the Indenture and the
Registrable Securities, as liquidated damages, and not as a penalty, to each
Holder for each day interest accrues beginning on the Event Date an amount equal
to the Liquidated Damages Accrual Amount per $2,000 amount of Registrable
Securities held by such Holder; provided, that such liquidated damages will, in
each case, cease to accrue (subject to the occurrence of another Event) on the
date on which all Events have been cured. An Event under clause (i) above shall
be cured on the date that the Exchange Offer Registration Statement (or, if an
Initial Shelf Registration is required to be filed pursuant to clause (i), (ii)
or (iii) of Section 2(i), the date that such Initial Shelf Registration) is
filed with the SEC; an Event under clause (ii) above shall be cured on the date
that the Exchange Offer Registration Statement (or, if an Initial Shelf
Registration is required to be filed pursuant to clause (i), (ii) or (iii) of
Section 2(i), the date that such Initial Shelf Registration) is declared
effective by the SEC; an Event under clause (iii) above shall be cured on the
earlier of the date (A) the Exchange Offer is consummated with respect to all
Notes validly tendered or (B) the Company delivers a Shelf Notice to the Holders
and the Trustee pursuant to clause (i), (ii) or (iii) of Section 2(i); an Event
under clause (iv) above shall be cured on the date that such Initial Shelf
Registration is filed with the SEC; an Event under clause (v) above shall be
cured on the date that such Initial Shelf Registration is declared effective by
the SEC; and an Event under clause (vi) above shall be cured on the earlier of
(1) the date on which the applicable Shelf Registration is no longer subject to
an order suspending the effectiveness thereof or proceedings relating thereto or
(2) a new Subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Trustee within five Business Days after
each Event Date. The Company shall pay the liquidated damages due on the
Registrable Securities by depositing with the Trustee, in trust, for the benefit
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of the Holders thereof, by 9:00 am, New York City time, on or before the
applicable semi-annual interest payment date for the Registrable Securities or
any other date on which payment for accrued interest on the Registrable
Securities is due and payable for a period in which liquidated damages are due
and payable under this Agreement, immediately available funds in sums sufficient
to pay the liquidated damages then due. The liquidated damages amount due shall
be payable in the same manner as interest payments on the Notes on each interest
payment date or other date on which accrued interest is payable to the record
Holder entitled to receive the interest payment to be made on such date as set
forth in the Indenture.
5. REGISTRATION PROCEDURES.
In connection with the registration of any Securities pursuant to
Sections 2 or 3, the Company shall effect such registrations to permit the sale
of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, as soon as practicable after
the date hereof but in any event on or prior to the Filing Date, with
respect to an Exchange Offer Registration Statement, and on or prior to
the Shelf Filing Date, with respect to a Shelf Registration, as prescribed
by Sections 2 and 3, respectively, and use its reasonable best efforts to
cause each such Registration Statement to become effective and remain
continuously effective as provided in this Agreement; provided, that if
(i) such filing is pursuant to Section 3 or (ii) a Prospectus contained in
an Exchange Offer Registration Statement filed pursuant to Section 2 is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, (A) the Company shall notify the
Holders of the Registrable Securities covered by such Registration
Statement, their Special Counsel, each Participating Broker-Dealer, the
managing underwriters, if any, and their counsel of such filing at least
five Business Days prior to making such filing, (B) if requested, the
Company shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement, their Special Counsel,
each Participating Broker-Dealer, the managing underwriters, if any, and
their counsel a reasonable opportunity to review, and shall make available
for inspection by such Persons, copies of all such documents (including
copies of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed and such financial and other
information and books and records of the Company, as shall be necessary,
in the opinion of Special Counsel and the respective counsels to such
Participating Broker-Dealers and underwriters, to conduct a reasonable due
diligence investigation within the meaning of the Securities Act, and (C)
the Company shall cause the members, managers, officers, directors and
employees of the Company, and counsel and independent certified public
accountants of the Company, to respond to such inquiries, as shall be
necessary, in the opinion of Special Counsel and the respective counsels
to such Participating Broker-Dealers and underwriters, to conduct a
reasonable due diligence investigation within the meaning of the
Securities Act. The Company may require each Holder to agree in writing to
keep confidential any non-public information relating to the Company
received by such Holder, to refrain from using such information as the
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basis for any market transactions in the Securities of the Company and not
to disclose such information (other than to an affiliate or prospective
purchaser who agrees in writing to respect the confidentiality provisions
of this Section 5(a)) until such information has been made generally
available to the public unless the release of such information is required
by law or necessary to respond to inquiries of regulatory authorities. The
Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto which the Holders must be afforded an
opportunity to review prior to the filing of such document, if the Holders
of a majority in aggregate principal amount of the Registrable Securities
covered by such Registration Statement, their Special Counsel, any
Participating Broker-Dealer or the managing underwriters, if any, or their
counsel shall reasonably object to such filing within five Business Days
after receipt of the Company's notice of filing described above in this
Section 5(a). A 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 an untrue
statement of a material fact or omits to state any material fact necessary
to make the statements therein not misleading or fails to comply with the
applicable requirements of the Securities Act.
(b) Provide an indenture trustee for the Registrable Securities or
the Exchange Securities, as the case may be, and cause the Indenture (or
other indenture relating to the Registrable Securities) to be qualified
under the TIA not later than the effective date of the first Registration
Statement; in connection therewith, effect such changes to such indenture
as may be required for such indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use its reasonable best
efforts to cause such 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 such indenture to be so qualified in a timely
manner.
(c) Prepare and file with the SEC such pre-effective amendments
and post-effective amendments to the Registration Statement as may be
necessary in order to cause the Registration Statement to become effective
and to keep such Registration Statement continuously effective for the
time periods required hereby; 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) under the Securities Act, and comply fully with
Rules 424, 430A and 462, as applicable, under the Securities Act in a
timely manner; and comply in all material respects with the provisions of
the Securities Act and the Exchange Act applicable thereto with respect to
the disposition of all securities covered by such Registration Statement,
as so amended, or in such Prospectus, as so supplemented, in accordance
with the intended methods of distribution set forth in such Registration
Statement, as so amended, and such Prospectus, as so supplemented.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Company's receipt, a copy of
the order of the SEC declaring such Registration Statement and any
post-effective amendment thereto effective, (ii) such reasonable number of
copies of such Registration Statement and of each amendment and supplement
thereto (in each case including any documents incorporated therein by
reference and all exhibits (including exhibits incorporated by reference)
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to such Registration Statement and each such amendment and supplement),
(iii) such reasonable number of copies of the Prospectus included in such
Registration Statement (including each preliminary prospectus and each
supplement thereto), and such reasonable number of copies of the final
Prospectus as filed by the Company pursuant to Rule 424(b) under the
Securities Act, in conformity with the requirements of the Securities Act,
and (iv) such other documents (including any amendments and supplements
required to be filed pursuant to Section 5(c) and any documents
incorporated therein by reference and all exhibits thereto, including
exhibits incorporated by reference), as any such Person may reasonably
request. The Company hereby consents to the use of the Prospectus by each
of the selling Holders of Registrable Securities and by each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Securities covered by, or the sale by
Participating Broker-Dealers of the Exchange Securities pursuant to, such
Prospectus and any amendment or supplement thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, notify the selling
Holders of Registrable Securities, their Special Counsel, each
Participating Broker-Dealer and the managing underwriters, if any,
promptly (but in any event within five Business Days), and, if requested
by such Person, confirm such notice in writing, (i) when a Prospectus or
any Prospectus supplement or Registration Statement or post-effective
amendment has been filed, and, with respect to a Registration Statement or
any post-effective amendment, when the same has become effective under the
Securities Act, (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 Prospectus or the initiation of
any proceedings for that purpose, (iii) if, at any time when a Prospectus
is required by the Securities Act to be delivered in connection with sales
of the Registrable Securities, the representations and warranties of the
Company contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) below cease to be true and correct in any
material respect, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption from
qualification of a Registration Statement or any of the Registrable
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the contemplation,
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to
be incorporated therein by reference to be untrue in any material respect
or that requires the making of any additions to or changes in such
Registration Statement, Prospectus or documents so that 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 light of the circumstances under which such
statements were made, not misleading, (vi) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement
would be appropriate, and (vii) of any request by the SEC for amendments
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to the Registration Statement or supplements to the Prospectus or for
additional information relating thereto.
(f) Use its reasonable best efforts to register or qualify, and,
if applicable, to cooperate with the selling Holders of Registrable
Securities, the underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of, Registrable Securities to be included
in a Registration Statement for offer and sale under the securities or
Blue Sky laws of such jurisdictions within the United States as any
selling Holder, Participating Broker-Dealer or the managing underwriters
reasonably request in writing; and, if Securities are offered other than
through an Underwritten Offering, the Company shall cause its counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(f) at the expense of the
Company; 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
necessary or advisable to enable the disposition in such jurisdictions of
the Securities covered by the applicable Registration Statement; provided,
however, that the Company shall not be required to (i) register or qualify
generally to do business in any jurisdiction where it is not then so
qualified, (ii) take any action that would subject it to general service
of process in any jurisdiction where it is not then so subject or (iii)
take any action that would subject it to general taxation in respect of
doing business in any such jurisdiction where it is not then so subject.
(g) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Securities
for sale in any jurisdiction, and, if any such order is issued, use its
best efforts to obtain the withdrawal or lifting of any such order at the
earliest possible time.
(h) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, and if requested by the
managing underwriters, if any, such Participating Broker-Dealer or the
Holders of a majority in aggregate principal amount of the Registrable
Securities, (A) promptly incorporate in a Prospectus supplement or
post-effective amendment such information as the managing underwriters, if
any, or such Holders reasonably request to be included therein as required
to comply with any Applicable Law and (B) make all required filings of
such Prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of such matters
required by Applicable Law to be incorporated in such Prospectus
supplement or post-effective amendment.
(i) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, cooperate with the
selling Holders, such Participating Broker-Dealer and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
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certificates representing 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 ("DTC"); and enable
such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, such Participating
Broker-Dealer or the Holders may request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, upon the occurrence of
any event contemplated by Section 5(e)(v), 5(e)(vi) or 5(e)(vii), as
promptly as practicable prepare a post-effective amendment to the
Registration Statement, a supplement to the related Prospectus or a
supplement or amendment to any such 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 or to the purchasers of the Exchange
Securities to whom such Prospectus will be delivered by a Participating
Broker-Dealer, 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 light of the
circumstances under which they were made, not misleading, and, if SEC
review is required, use its reasonable best efforts to cause such
post-effective amendment to be declared effective as soon as practicable.
(k) Use its reasonable best efforts to cause the Securities
covered by a Registration Statement to be rated with the appropriate
rating agencies, if appropriate, and if so requested by the holders of a
majority in aggregate principal amount of Securities covered by such
Registration Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable trustee
with printed certificates for the Securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for each of the
Securities.
(m) Use its reasonable best efforts to cause all Securities
covered by such Registration Statement to be listed on each securities
exchange, if any, on which similar debt securities issued by the Company
are then listed.
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in form, scope
and substance as is customary in Underwritten Offerings) and take all such
other actions in connection therewith (including those reasonably
requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of Registrable Securities being
sold) in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection,
whether or not an underwriting agreement is entered into and whether or
not the registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters, if
any, with respect to the business of the Company and its subsidiaries, if
any, and the Registration Statement, Prospectus and documents, if any,
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incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by Company to
underwriters in Underwritten Offerings, and confirm the same if and when
reasonably requested; (ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and
the Holders of a majority in aggregate principal amount of the Registrable
Securities being sold), addressed to each selling Holder and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in Underwritten Offerings; (iii) obtain "cold comfort" letters
and updates thereof (which letters and updates (in form, scope and
substance) shall be reasonably satisfactory to the managing 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 in the Registration Statement), addressed to each of the
underwriters and each selling Holder, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with Underwritten Offerings and such other matters
as reasonably requested by underwriters; and (iv) deliver such documents
and certificates as may be reasonably requested by the Holders of a
majority in principal amount of the Registrable Securities being sold and
the managing underwriters, if any, to evidence the continued validity of
the representations and warranties of the Company and its subsidiaries, if
any, made pursuant to clause (i) above and to evidence compliance with any
conditions contained in the underwriting agreement or other similar
agreement entered into by the Company.
(o) Comply with all applicable rules and regulations of the SEC
and make generally available to its security holders earnings 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 on the first day of the fiscal quarter following each 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 quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and substance
reasonably satisfactory to the Initial Purchaser), addressed to all
Holders participating in the Exchange Offer or Private Exchange, as the
case may be, to the effect that (i) the Company has duly authorized,
executed and delivered the Exchange Securities or the Private Exchange
Securities, as the case may be, and the Indenture and (ii) the Exchange
Securities or the Private Exchange Securities, as the case may be, and the
Indenture constitute legal, valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective terms,
except as such enforcement may be subject to (A) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and (B) general principles of
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equity (regardless of whether such enforcement is sought in a proceeding
in equity or at law).
(q) If an Exchange Offer or Private Exchange is to be consummated,
upon delivery of the Registrable Securities by such Holders to the Company
(or to such other Person as directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may
be, the Company shall ▇▇▇▇, or caused to be marked, on such Registrable
Securities that such Registrable Securities are being cancelled in
exchange for the Exchange Securities or the Private Exchange Securities,
as the case may be, and in no event shall such Registrable Securities be
marked as paid or otherwise satisfied.
(r) 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 NASD.
(s) Use its reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered
by a Registration Statement contemplated hereby.
Each Holder and each Participating Broker-Dealer agrees by
acquisition of such Registrable Securities or Exchange Securities that, upon
receipt of written notice from the Company of the happening of any event of the
kind described in Section 5(e)(ii), 5(e)(iv), 5(e)(v), 5(e)(vi) or 5(e)(vii),
such Holder will forthwith discontinue disposition (in the jurisdictions
specified in a notice of a 5(e)(iv) event, and elsewhere in a notice of a
5(e)(ii), 5(e)(v), 5(e)(vi) or 5(e)(vii) event) of such Securities covered by
such Registration Statement or Prospectus until the earlier of (i) such Holder's
receipt of the copies of the amended or supplemented Prospectus contemplated by
Section 5(j); or (ii) the time such Holder is advised in writing (the "ADVICE")
by the Company that offers or sales in a particular jurisdiction may be resumed,
or that the use of the applicable Prospectus may be resumed, as the case may be,
and has received copies of any amendments or supplements thereto. If so directed
by the Company in such notice, each Holder and each Participating Broker-Dealer
will deliver to the Company (at the Company's expense) all copies of the
Prospectus covering such Securities that was current at the time of such
Holder's or Participating Broker-Dealer's receipt of such notice. If the Company
shall give such notice, each of the Effectiveness Period and the Applicable
Period shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each seller of such Securities covered by such Registration Statement shall have
received (x) the copies of the amended or supplemented Prospectus contemplated
by Section 5(j) or (y) the Advice.
6. 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 whether or not
the Exchange Offer is consummated or the Exchange Offer Registration Statement
or a Shelf Registration is filed or becomes effective, including, without
limitation:
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(i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the
NASD 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 Registrable
Securities or Exchange Securities and determination of the eligibility of
the Registrable Securities or Exchange Securities for investment under the
laws of such jurisdictions (x) where the Holders are located, in the case
of the Exchange Securities, or (y) as provided in Section 5(f), in the
case of Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period));
(ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities or Exchange Securities in
a form eligible for deposit with DTC and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriters, if
any, or, in respect of Registrable Securities or Exchange Securities to be
sold by a Participating Broker-Dealer during the Applicable Period, by the
Holders of a majority in aggregate principal amount of the Registrable
Securities included in any Registration Statement or of such Exchange
Securities, as the case may be);
(iii) messenger, telephone, duplication, word processing and
delivery expenses incurred by the Company in the performance of its
obligations hereunder;
(iv) fees and disbursements of counsel for the Company and, subject
to Section 6(b), the Holders;
(v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance);
(vi) fees and expenses of any "qualified independent underwriter"
or other independent appraiser participating in an offering pursuant to
Section 3 of Schedule E to the By-laws of the NASD, but only where the
need for such a "qualified independent underwriter" arises due to a
relationship with the Company;
(vii) Securities Act liability insurance, if the Company so desires
such insurance;
(viii) fees and expenses of all other Persons, including special
experts, retained by the Company; internal expenses of the Company
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), and the expenses of
any annual audit; and
(ix) rating agency fees and the fees and expenses incurred in
connection with the listing of the Securities to be registered on any
securities exchange.
(b) The Company shall reimburse the Holders for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Registrable Securities to be included in any Registration Statement and
- 17 -
other reasonable and necessary out-of-pocket expenses of the Holders incurred in
connection with the registration of the Registrable Securities.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, without
limitation as to time, indemnify and hold harmless each Holder and each
Participating Broker-Dealer, each Person who controls (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act (any of
such persons being hereinafter referred to as a "CONTROLLING PERSON")) each such
Holder and any such Participating Broker-Dealer and the members, managers,
officers, directors, partners, employees, representatives and agents of each
such Holder, Participating Broker-Dealer and controlling person (collectively,
the "HOLDER INDEMNIFIED PARTIES"), to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, costs (including,
without limitation, costs of preparation and reasonable attorneys' fees) and
expenses (including, without limitation, costs and expenses incurred in
connection with investigating, preparing, pursuing or defending against any of
the foregoing) (collectively, "LOSSES"), as incurred, directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or in any amendment or supplement thereto, or any omission or
alleged omission to state therein 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, except insofar as such Losses are
based upon information relating to such Holder or Participating Broker-Dealer
and furnished in writing to the Company by such Holder or Participating
Broker-Dealer expressly for use therein; provided, that the Company shall not be
liable under the indemnity provided in this Section 7(a) to any Holder
Indemnified Party for any Losses that (A) result solely from an untrue statement
of a material fact contained in, or the omission of a material fact from, any
preliminary prospectus, which untrue statement or omission was corrected in the
Prospectus (as then amended or supplemented) if it shall have been determined by
a court of competent jurisdiction by final and nonappealable judgment that (1)
such Holder Indemnified Party sold the Securities to the person alleging such
Loss and failed to send or give, at or prior to the written confirmation of such
sale, a copy of the Prospectus (as then amended or supplemented), if required by
law to have so delivered it, and (2) the Company had previously furnished copies
of the corrected Prospectus to such Holder Indemnified Party within a reasonable
amount of time prior to such sale or such confirmation, and (3) the corrected
Prospectus, if delivered, would have been a complete defense against the person
asserting such Loss. The Company shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their members, managers, officers, directors,
agents and employees and each of their respective controlling persons to the
same extent as provided above with respect to the indemnification of the Holder
Indemnified Parties.
(b) Indemnification by Holders of Registrable Securities. In connection
with any Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or any amendment or supplement thereto, in which a Holder is
participating, such Holder shall furnish to the Company in writing such
information as the Company reasonably request for use in connection with any
such Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, any amendment or supplement thereto, and shall, severally and not
jointly, without limitation as to time, indemnify and hold harmless the Company,
- 18 -
its members, managers, directors, officers, agents and employees, each
controlling person of the Company and the members, managers, directors,
officers, agents or employees of such controlling persons, to the fullest extent
lawful, from and against any and all Losses, as incurred, arising out of or
based upon any untrue or alleged untrue statement of a material fact contained
in any such Registration Statement, preliminary prospectus, Prospectus or form
of prospectus, or any amendment or supplement thereto, or any omission or
alleged omission to state therein 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 to the extent, but only to the
extent, that such untrue statement or alleged untrue statement of a material
fact or omission or alleged omission of a material fact is contained in or
omitted from any information so furnished in writing by such Holder to the
Company expressly for use in any Registration Statement, preliminary prospectus,
Prospectus or form of prospectus, or any amendment or supplement thereto. In no
event shall the liability of any selling Holder be greater in amount than such
Holder's Maximum Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnification hereunder (an
"INDEMNIFIED PARTY"), such indemnified party shall promptly notify the party or
parties from which such indemnification is sought (the "INDEMNIFYING PARTIES")
in writing; provided, that the failure to so notify the indemnifying parties
shall not relieve the indemnifying parties from any obligation or liability
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 parties have been prejudiced materially
by such failure.
The indemnifying parties shall have the right, exercisable by giving
written notice to an indemnified party, within 20 Business Days after receipt of
written notice from such indemnified party of such Proceeding, to assume, at
their expense, the defense of any such Proceeding; provided, that an indemnified
party shall have the right to employ separate counsel in any such Proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless: (i) the
indemnifying parties have agreed to pay such fees and expenses; (ii) the
indemnifying parties shall have failed promptly to assume the defense of such
Proceeding or shall have failed to employ counsel reasonably satisfactory to
such indemnified party; or (iii) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and one or
more indemnifying parties (or any affiliates or controlling persons of any of
the indemnifying parties), and such indemnified party shall have been advised by
counsel that there may be one or more defenses available to such indemnified
party that are in addition to, or in conflict with, those defenses available to
the indemnifying party or such affiliate or controlling person (in which case,
if such indemnified party notifies the indemnifying parties in writing that it
elects to employ separate counsel at the expense of the indemnifying parties,
the indemnifying parties shall not have the right to assume the defense thereof
and the reasonable fees and expenses of such counsel shall be at the expense of
the indemnifying parties; it being understood, however, that, the indemnifying
parties shall not, in connection with any one such Proceeding or separate but
substantially similar or related Proceedings in the same jurisdiction, arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for such indemnified party).
- 19 -
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each indemnified
party from and against any and all Losses by reason of such settlement or
judgment. The indemnifying party shall not consent to the entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to each indemnified party of a
release, in form and substance reasonably satisfactory to the indemnified party,
from all liability in respect of such Proceeding for which such indemnified
party would be entitled to indemnification hereunder (whether or not any
indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this Section 7
is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 7
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 7), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such Losses, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the sale of Registrable 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 indemnifying party, on
the one hand, and such indemnified party, on the other hand, in connection with
the actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such statement or
omission. The amount paid or payable by an indemnified party as a result of any
Losses shall be deemed to include any legal or other fees or expenses incurred
by such party in connection with any Proceeding, to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided
for in Section 7(a) or 7(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) 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.
Notwithstanding the provisions of this Section 7(d), an indemnifying party that
is a selling Holder shall not be required to contribute, in the aggregate, any
amount in excess of such Holder's Maximum Contribution Amount. A selling
Holder's "MAXIMUM CONTRIBUTION AMOUNT" shall equal the excess, if any, of (i)
the aggregate proceeds received by such Holder pursuant to the sale of the
Registrable Securities giving rise to such indemnification obligation over (ii)
the aggregate amount of 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 Securities 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 7(d) are several in
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proportion to the respective principal amount of the Registrable Securities held
by each Holder hereunder and not joint.
The indemnity and contribution agreements contained in this Section
7 are in addition to any liability that the indemnifying parties otherwise may
have to the indemnified parties.
8. RULE 144 AND RULE 144A.
The Company covenants that (a) during any period that it is required
to file reports under the Securities Act or the Exchange Act, it shall file all
reports required to be filed by it in a timely manner in order to permit resales
of Registrable Securities pursuant to Rule 144 under the Securities Act and (b)
during any period that it is not required to file such reports, it shall, upon
the request of any Holder, make available to each Holder or beneficial owner of
Registrable Securities and to any prospective purchaser of Registrable
Securities designated by such Holder or beneficial owner the information
required by Rule 144A(d)(4) under the Securities Act to permit resales of
Registrable Securities pursuant to Rule 144A. The Company shall take such
further action as any Holder 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 pursuant to the exemptions provided by
Rule 144 and Rule 144A. Upon the request of any Holder, the Company shall
deliver to such Holder a written statement as to whether such Issuer has
complied with such information requirements. Nothing in this Section 8 shall be
deemed to require the Company to register any Securities pursuant to the
Exchange Act.
9. 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 a majority in aggregate principal amount of such
Registrable Securities included in such offering with the consent of the
Company, which consent shall not be unreasonably withheld or delayed.
No Holder 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, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
10. MISCELLANEOUS.
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement (other than an Event), each Holder, in addition
to being entitled to exercise all rights provided herein, in the Indenture or,
in the case of the Initial Purchaser, in the Purchase Agreement, or granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company agrees that monetary damages would
not be adequate compensation for loss incurred by reason of such as breach by
the Company and hereby further agrees that, in the event of any action for
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specific performance in respect of such a breach by the Company, the Company
shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered into, as of
the date hereof, and shall not enter into, after the date of this Agreement, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. For the avoidance of doubt, nothing in this Agreement shall
limit the Company's ability to register shares underlying stock options granted
to the Company's directors, officers and employees in the ordinary course of the
Company's business.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of at
least a majority of the then outstanding aggregate principal amount of
Registrable Securities; provided, that Sections 4(a) and 7 shall not be amended,
modified or supplemented, and waivers or consents to departures from this
proviso may not be given, unless the Company has obtained the written consent of
each Holder. 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 whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority in aggregate principal
amount of the Registrable Securities being sold by such Holders pursuant to such
Registration Statement; provided that the provisions of this sentence may not be
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(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, certified
first-class mail with return receipt requested, next-day air courier or
facsimile:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
10(d), which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar (as defined in the
Indenture); and
(ii) if to the Company, initially at Leucadia National Corporation,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile number (212)
598-4869, Attention: Chief Financial Officer, with a copy to Weil, Gotshal
& ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 10(d).
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, if sent by next-day air
courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
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Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(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 without limitation and without the need for an express assignment,
subsequent Holders; provided, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Registrable Securities in violation
of the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable 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.
(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. When
a reference is made in this Agreement to a Section, paragraph, subparagraph,
Schedule or Exhibit, such reference shall mean a Section, paragraph,
subparagraph, Schedule or Exhibit to this Agreement unless otherwise indicated.
The words "INCLUDE," "INCLUDES," and "INCLUDING" when used in this Agreement
shall be deemed in each case to be followed by the words "WITHOUT LIMITATION."
The phrases "THE DATE OF THIS AGREEMENT," "THE DATE HEREOF," and terms of
similar import, unless the context otherwise requires, shall be deemed to refer
to March 6, 2007. The words "HEREOF," "HEREIN," "HEREWITH," "HEREBY" and
"HEREUNDER" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED,
AND THE RIGHTS OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(b) OF NEW YORK CIVIL
PRACTICE LAWS AND RULES. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
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HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH HEREIN,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE INITIAL PURCHASER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(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 respective 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) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Company in
respect of securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any provision
of this Agreement, or where any provision hereof is validly asserted as a
defense, the prevailing party, as determined by the courts, shall be entitled to
recover reasonable attorneys' fees in addition to its costs and expenses and any
other available remedy.
(l) Securities Held by the Company or its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of the principal 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) (other than Holders deemed to be such affiliates solely by
reason of their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
[signature pages follow this page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
LEUCADIA NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Orlando
------------------------------------
Name: ▇▇▇▇▇▇ ▇. Orlando
Title: Vice President and Chief Financial
Officer
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
S-1