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EURO 250,000,000 10 5/8% Senior Secured Notes due 2011
REGISTRATION RIGHTS AGREEMENT
Dated as of April 10, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ (publ),
Deutsche Bank AG London,
and
UBS AG, acting through its business group UBS Warburg
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TABLE OF CONTENTS
PAGE
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1. Definitions..............................................................................................1
2. Exchange Offer...........................................................................................4
3. Shelf Registration Statement.............................................................................7
4. Liquidated Damages.......................................................................................8
5. Registration Procedures.................................................................................10
6. Registration Expenses...................................................................................17
7. Indemnification and Contribution........................................................................18
8. Rule 144A...............................................................................................21
9. Underwritten Registrations..............................................................................22
10. Miscellaneous...........................................................................................22
(a) No Inconsistent Agreements.....................................................................22
(b) Adjustments Affecting Transfer Restricted Securities...........................................22
(c) Amendments and Waivers.........................................................................22
(d) Notices........................................................................................23
(e) Successors and Assigns.........................................................................24
(f) Counterparts...................................................................................24
(g) Headings.......................................................................................24
(h) Governing Law..................................................................................24
(i) Remedies.......................................................................................24
(j) Submission to Jurisdiction; Appointment of Agent for Service; Waiver...........................25
[(k) Currency Indemnity.............................................................................25
(l) Severability...................................................................................26
i
(m) Securities Held by the Company or Its Affiliates...............................................26
(n) Third Party Beneficiaries......................................................................26
(o) Entire Agreement...............................................................................26
REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (the "AGREEMENT") is dated
as of April 10, 2001, among Preem Holdings AB (publ), a company organized under
the laws of the Kingdom of Sweden (the "COMPANY") and Deutsche Bank AG London
and UBS AG, acting through its business group UBS Warburg (together, the
"INITIAL PURCHASERS").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of April 3, 2001, among the Company and the Initial
Purchasers (the "PURCHASE AGREEMENT"), which provides for the sale by the
Company to the Initial Purchasers of its EURO 250,000,000 10 5/8% Senior Secured
Notes due 2011 (the "SECURITIES"). The Securities are to be issued under an
indenture dated as of April 10, 2001 (the "INDENTURE"), between the Company,
Deutsche Bank AG London, as Principal Paying Agent, and Bankers Trust Company,
as Trustee. In order to induce the Initial Purchasers 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 Purchasers and their direct and
indirect transferees and assigns.
The parties hereby agree as follows:
1. DEFINITIONS
Unless otherwise defined herein, terms defined in the
Indenture shall be used herein as defined therein. As used in this Agreement,
the following terms shall have the following meanings:
"ADVICE": As defined in Section 5 hereof.
"AGREEMENT": As defined in the first introductory paragraph
hereof.
"APPLICABLE PERIOD": As defined in Section 2(b) hereof.
"BUSINESS DAY": A day other than a Saturday, Sunday, or other
day in which commercial banking institutions are authorized or required
by law to close in
New York City, Stockholm, Sweden, London or
Luxembourg.
"CLEARSTREAM": Clearstream Banking, SOCIETE ANONYME.
"COMMON DEPOSITARY": The common depositary for Euroclear and
Clearstream Banking, or its nominee.
"COMPANY": As defined in the first introductory paragraph
hereto.
"EFFECTIVENESS PERIOD": As defined in Section 3(a) hereof.
"EFFECTIVENESS TARGET DATE": The 180th day after the Issue
Date.
"EUROCLEAR": ▇▇▇▇▇▇ Guaranty Trust Company of
New York,
Brussels office, as operator of the Euroclear System.
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"EVENT DATE": As defined in Section 4(b) hereof.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
"EXCHANGE OFFER": As defined in Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT": As defined in
Section 2(a) hereof.
"EXCHANGE SECURITIES": As defined in Section 2(a) hereof.
"FILING DATE": The 75th day after the Issue Date.
"HOLDER": Any holder of Transfer Restricted Securities.
"INDENTURE": As defined in the second introductory paragraph
hereto.
"INITIAL PURCHASERS": As defined in the first introductory
paragraph hereto.
"INSPECTORS": As defined in Section 5(o) hereof.
"ISSUE DATE": The date of the issuance of the Securities
under the Indenture.
"LIQUIDATED DAMAGES": As defined in Section 4(a) hereof.
"NASD": As defined in Section 5(s) hereof.
"PARTICIPANT": As defined in Section 7(a) hereof.
"PARTICIPATING BROKER-DEALER": As defined in Section 2(b)
hereof.
"PERSON": An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
"PRIVATE EXCHANGE": As defined in Section 2(b) hereof.
"PRIVATE EXCHANGE SECURITIES": As defined in Section 2(b)
hereof.
"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": As defined in the second introductory
paragraph hereto.
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"RECORDS": As defined in Section 5(o) hereof.
"REGISTRATION STATEMENT": Any registration statement of the
Company, including, but not limited to, the Exchange Offer Registration
Statement or the Shelf Registration Statement, 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 providing
for offers and sales of securities made in compliance therewith
resulting in offers and sales by subsequent holders that are not
affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities
Act.
"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.
"SEC": The U.S. Securities and Exchange Commission.
"SECURITIES": As defined in the second introductory
paragraph hereto.
"SECURITIES ACT": The United States Securities Act of 1933,
as amended, and the rules and regulations of the SEC promulgated
thereunder.
"SHELF NOTICE": As defined in Section 2(c) hereof.
"SHELF REGISTRATION STATEMENT": As defined in Section 3(a)
hereof.
"TRANSFER RESTRICTED SECURITIES": Each Security until the
earliest to occur of (i) the date on which such Security has been
exchanged by a Person (other than a Participating Broker-Dealer) for
Exchange Securities in the Exchange Offer, (ii) following the exchange
by a Participating Broker-Dealer in the Exchange Offer of such Security
for one or more Exchange Securities, the date on which such Exchange
Securities are sold to a purchaser who receives from such Participating
Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus, (iii) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with
the Shelf Registration Statement or (iv) the date on which such
Security is eligible for distribution to the public pursuant to Rule
144 under the Securities Act.
"TRUST INDENTURE ACT": The Trust Indenture Act of 1939, as
amended.
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"TRUSTEE": The trustee, in its capacity as such, under the
Indenture and, if existent, the trustees under any indenture governing
the Exchange Securities and Private Exchange Securities (if any); the
trustee under the Indenture for the Securities shall initially be
Bankers Trust Company.
"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 agrees to file at its sole cost and expense
with the SEC no later than the Filing Date, unless prohibited by applicable law
or SEC policy, an offer to exchange (the "EXCHANGE OFFER") any and all of the
Transfer Restricted Securities (other than Private Exchange Securities, if any)
for a like aggregate principal amount of Securities of the Company, which are
substantially identical in all material respects to the Securities (the
"EXCHANGE SECURITIES") and which are entitled to the benefits of the Indenture
or a trust indenture which is substantially identical in all material respects
to the Indenture (other than such changes to such Indenture or any such
identical trust indenture as are necessary to comply with any requirements of
the SEC to effect or maintain the qualification thereof under the Trust
Indenture Act) and which, in either case, has been qualified under the Trust
Indenture Act, except that the Exchange Securities (other than Private Exchange
Securities, if any) shall have been registered pursuant to an effective
Registration Statement under the Securities Act and shall contain no restrictive
legend thereon. The Exchange Offer shall be registered under the Securities Act
on the appropriate form (the "EXCHANGE OFFER REGISTRATION STATEMENT") and shall
comply with all applicable tender offer rules and regulations under the Exchange
Act. The Company agrees to (i) file (or submit on a confidential basis) the
Exchange Offer Registration Statement with the SEC on or prior to 75 days after
the Issue Date; (ii) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Target Date; (iii) (A) file all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) file, if applicable, a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in connection with
the registration and qualifications of the Exchange Securities to be made under
the blue sky laws of such jurisdictions as are necessary to permit consummation
of the Exchange Offer; and (iv) use its reasonable best efforts to consummate
the Exchange Offer on or prior to 30 days after the date on which the Exchange
Offer Registration Statement is declared effective by the SEC. Upon the Exchange
Offer Registration Statement being declared effective, the Company will offer
the Exchange Securities in exchange for surrender of the Securities. If after
such Exchange Offer Registration Statement is declared effective by the SEC, the
Exchange Offer or the issuance of the Exchange Securities thereunder is
interfered with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Exchange Offer
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement. Each Holder who participates in the Exchange Offer will be
required to represent that (i) any Exchange Securities received by it will be
acquired in the ordinary course of its business, (ii) it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities, (iii) it is not an
"affiliate" (as defined in Rule 405 under the Securities Act) of the
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Company or, if it is such an affiliate, it will comply with the registration
and prospectus delivery requirements of the Securities Act to the extent
applicable and (iv) it is not acting on behalf of any Person who could not
truthfully make the foregoing representations. If such Holder is not a
broker-dealer, such Holder will be required to represent that it is not
engaged in, and does not intend to engage in, the distribution of the
Exchange Securities. If such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading activities,
it will be required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. Upon consummation of
the Exchange Offer in accordance with this Section 2, the Company shall have
no further obligation to register Transfer Restricted Securities (other than
Private Exchange Securities and other than in respect of any Exchange
Securities as to which clause 2(c)(iv) hereof applies) pursuant to Section 3
hereof. No securities other than the Exchange Securities shall be included in
the Exchange Offer Registration Statement.
(b) The Company shall include within the Prospectus contained
in the Exchange Offer Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, which shall
contain 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"), whether such positions or
policies have been publicly disseminated by the Staff of the SEC or such
positions or policies, in the judgment of the Initial Purchasers, represent the
prevailing views of the Staff of the SEC. Such "Plan of Distribution" section
shall also expressly permit the use of the Prospectus by all Persons subject to
the prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers (unless such Participating Broker-Dealer will be
reselling an unsold allotment from the original sale of the Securities), and
include a statement describing the means by which Participating Broker-Dealers
may resell the Exchange Securities.
After the consummation of the Exchange Offer, the Company
shall use its best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein, in order
to permit such Prospectus to be lawfully delivered by any Participating
Broker-Dealer subject to the prospectus delivery requirements of the Securities
Act and other Persons, if any, with similar prospectus delivery requirements for
such period of time as is necessary to comply with applicable law in connection
with any resale of the Exchange Securities; PROVIDED, HOWEVER, that such period
shall not exceed 180 days after the consummation of the Exchange Offer (or such
longer period if extended pursuant to the last paragraph of Section 5 hereof)
(the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having, or which are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, the Company, upon the written request of the Initial
Purchasers simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "PRIVATE EXCHANGE") for such Securities held by the Initial Purchasers a
like principal amount of Securities of the Company, that are substantially
identical in all material respects to the Exchange Securities (the "PRIVATE
EXCHANGE SECURITIES") (and which are issued pursuant to the
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same indenture as the Exchange Securities) except for the placement of a
restrictive legend on such Private Exchange Securities. The Private Exchange
Securities shall bear the same CUSIP number, if any, ISIN number and Common
Code as the Exchange Securities to the extent permitted by the CUSIP Service
Bureau of Standard & Poor's and other applicable organizations.
Interest on the Exchange Securities and the Private Exchange
Securities will accrue from the last interest payment date on which interest was
paid on the Securities surrendered in exchange therefor or if no interest has
been paid on the Securities from the Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in
London, England, which may be either the Trustee or an affiliate of the
Trustee;
(3) permit Holders to withdraw tendered Securities at any time
prior to the close of business, London time, on the last business day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Trustees or Authenticating Agent for
cancellation of all Securities so accepted for exchange; and
(3) cause each Trustee promptly to authenticate and deliver to
each Holder of the Securities, Exchange Securities or Private Exchange
Securities, as the case may be, in global form in aggregate principal
amount equal to the respective Securities so accepted for exchange, as
further set forth in the Indenture.
The Exchange Securities and the Private Exchange Securities
may be issued under (i) the Indenture or (ii) indenture substantially identical
in all material respects to the Indenture which in either event shall provide
that (1) the Exchange Securities shall not be subject to the transfer
restrictions set forth in the Indenture and (2) the Private Exchange Securities
shall be subject to the transfer restrictions set forth in the Indenture. The
Indenture or such indenture substantially identical in all material respects to
the Indenture shall provide that the Exchange Securities, Private Exchange
Securities and Securities shall vote and consent together on all
7
matters as one class and that none of the Exchange Securities, Private
Exchange Securities or Securities will have the right to vote or consent as a
separate class on any matter.
(c) If (i) the Company is not permitted to file the Exchange
Offer Registration Statement or to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or SEC policy, (ii) any Holder
of Transfer Restricted Securities that is a "qualified institutional buyer" (as
defined in Rule 144A under the Securities Act) notifies the Company at least 20
Business Days prior to the consummation of the Exchange Offer that (a)
applicable law or SEC policy prohibits such Holder from participating in the
Exchange Offer, (b) such Holder may not resell the Exchange Securities acquired
by it in the Exchange Offer to the public without delivering a prospectus and
the prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (c) such Holder is a
broker-dealer and holds Securities acquired directly from the Company or an
affiliate of the Company, (iii) the Exchange Offer is not for any other reason
consummated within 210 days after the Issue Date, or (iv) the Exchange Offer has
been completed and in the opinion of counsel for the Initial Purchasers a
Registration Statement must be filed and a prospectus must be delivered by the
Initial Purchasers in connection with any offering or sale of Transfer
Restricted Securities, then the Company shall promptly deliver written notice
thereof (the "SHELF NOTICE") to the Trustees and in the case of clauses (i) and
(iii), all Holders and, in the case of clauses (ii) and (i) the affected
Holders, and shall at its own cost file a Shelf Registration Statement pursuant
to Section 3 hereof.
3. SHELF REGISTRATION STATEMENT
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) The Company will use its reasonable best efforts to: (A)
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 Transfer Restricted
Securities (the "SHELF REGISTRATION STATEMENT"), within 90 days of the earliest
to occur of clauses (i) through (iv) in Section 2(c) above and (B) cause the
Shelf Registration Statement to be declared effective by the SEC on or prior to
the 150th day after such obligation arises; PROVIDED, HOWEVER, that if the
Company files a Shelf Registration Statement pursuant to this Section 3(a), it
need not abandon the attempt to cause the SEC to declare the Exchange Offer
Registration Statement effective, and it may satisfy its obligations to register
the Securities pursuant to this Agreement either by complying with Section 2
and/or Section 3. If the Company shall not have yet filed an Exchange Offer
Registration Statement, the Company shall use its best efforts to file with the
SEC the Shelf Registration Statement on or prior to the Filing Date. The Shelf
Registration Statement shall be on Form F-1 or another appropriate form
permitting registration of such Transfer Restricted Securities for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings), or may be an amendment to the
Exchange Offer Registration Statement. The Company shall not permit any
securities other than the Transfer Restricted Securities to be included in the
Shelf Registration Statement.
The Company shall use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective, supplemented and amended to
ensure that it is available for resales of Securities by the holders of Transfer
Restricted Securities entitled to this benefit and to
8
ensure that such Shelf Registration Statement conforms and continues to
conform with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the SEC, as announced from time to time,
until the second anniversary of the Issue Date, subject to extension pursuant
to the last paragraph of Section 5 hereof (the "EFFECTIVENESS PERIOD"), or
such shorter period ending when all Transfer Restricted Securities covered by
the Shelf Registration Statement have been sold in the manner set forth and
as contemplated in the Shelf Registration Statement or when the Transfer
Restricted Securities become eligible for resale pursuant to Rule 144 under
the Securities Act without volume restrictions, if any.
(b) If the Shelf Registration Statement 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 best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof.
(c) The Company shall promptly supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement,
if required by the Securities Act, or if reasonably requested by the Holders of
a majority in aggregate principal amount of the Transfer Restricted Securities
covered by such Registration Statement or by any underwriter of such Transfer
Restricted Securities based on a reasonable belief that such supplement or
amendment is required by law.
4. LIQUIDATED DAMAGES
(a) The Company and the Initial Purchasers agree that the
Holders of Securities will suffer damages if the Company fails to fulfill its
obligations under Section 2 or Section 3 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay, as liquidated damages, additional interest on the
Securities ("LIQUIDATED DAMAGES") under the circumstances and to the extent set
forth below (each of which shall be given independent effect and shall not be
duplicative):
(i) if neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been filed on
or prior to the Filing Date, then, commencing on the 76th day
after the Issue Date, Liquidated Damages shall accrue on the
Securities over and above the stated interest at a rate of 0.50%
per annum for the first 90 days immediately following the Filing
Date, such Liquidated Damages rate increasing by an additional
0.50% per annum at the beginning of each subsequent 90-day period,
or part thereof;
(ii) if neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement is declared
effective by the SEC on or prior to the Effectiveness Target Date,
then, commencing on the 181st day after the Issue Date, Liquidated
Damages shall accrue on the Securities included or which should
have been included in such Registration Statement over and above
the stated interest at a rate of 0.50% per annum for the first 90
days immediately following the Effectiveness Target Date, such
Liquidated Damages rate increasing by an additional 0.50% per
annum at the beginning of each subsequent 90-day period, or part
thereof; or
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(iii) if the Exchange Offer has not been consummated
within 30 days after the Effectiveness Target Date with respect to
the Exchange Offer Registration Statement, Liquidated Damages
shall accrue on the Securities over and above the stated interest
at a rate of 0.50% per annum for the first 90 days commencing on
the 31st day after the Effectiveness Target Date, such Liquidated
Damages rate increasing by an additional 0.50% per annum at the
beginning of each subsequent 90-day period, or part thereof; or
(iv) (A) the Exchange Offer Registration Statement is
filed and declared effective but thereafter ceases to be effective
or fails to be usable for its intended purpose at any time prior
to the time that the Exchange Offer is consummated and is not
succeeded within 5 Business Days by an additional Registration
Statement filed and declared effective or (B) the Shelf
Registration Statement is filed and declared effective but
thereafter ceases to be effective or fails to be usable for its
intended purpose at any time during the Effectiveness Period and
is not succeeded within 5 Business Days by an additional
Registration Statement filed and declared effective, Liquidated
Damages shall accrue on the Securities over and above the stated
interest rate at a rate of 0.50% per annum for the first 90 days
commencing on the day the applicable Registration Statement ceases
to be effective or usable for its intended purpose without being
declared effective again within 5 Business Days, such Liquidated
Damages rate increasing by an additional 0.50% per annum at the
beginning of each such subsequent 90-day period, or part thereof
(it being understood and agreed that, notwithstanding any
provision to the contrary, so long as any Note that is the subject
of a Shelf Notice is then covered by an effective Shelf
Registration Statement, no Liquidated Damages shall accrue on such
Note);
PROVIDED, HOWEVER, that Liquidated Damages may accrue at a maximum rate of 2%
per annum of the principal amount of Securities; and PROVIDED, FURTHER, that (1)
upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement as required hereunder (in the case of clause (i) of this
Section 4(a)), (2) upon the effectiveness of the Exchange Offer Registration
Statement or the Shelf Registration Statement as required hereunder (in the case
of clause (ii) of this Section 4(a)), (3) upon the consummation of the Exchange
Offer (in the case of clause (iii) of this Section 4(a)), and (4) upon the
effectiveness or usability of the Exchange Offer Registration Statement which
had ceased to remain effective or be usable (in the case of clause (iv)(A) of
this Section 4(a)), or upon the effectiveness or usability of the Shelf
Registration Statement which had ceased to remain effective or be usable (in the
case of clause (iv)(B) of this Section 4(a)), Liquidated Damages on the affected
Securities as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee and each Paying Agent
within 5 Business Days after each and every date on which an event occurs in
respect of which Liquidated Damages is required to be paid (an "EVENT DATE").
Any amounts of Liquidated Damages due pursuant to (a)(i), (a)(ii), (a)(iii) or
(a)(iv) of this Section 4 will be payable as set forth in the Indenture and the
Notes semi-annually on each April 15 and October 15 (to the holders of record on
the April 1 and October 1 immediately preceding such dates), commencing with the
first such date occurring after any such Liquidated Damages commences to accrue.
The amount of Liquidated Damages will be determined by multiplying the
applicable Liquidated Damages rate
10
by the principal amount of the affected Securities of such Holders,
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 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. The Company shall notify the Trustee within 5 Business Days of
the cessation of any requirement to pay Liquidated Damages hereunder.
(c) Upon both commencement and completion of the Exchange
Offer, the Company will provide notice thereof (if and so long as the Securities
are listed on the Luxembourg Stock Exchange and the rules of such stock exchange
shall so require) by publication in a newspaper having a general circulation in
Luxembourg (which is expected to be the LUXEMBURGER WORT).
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company shall effect such
registration(s) to permit the sale 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 Sections 2 or
3 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, if (1) such filing is pursuant to Section 3 hereof, or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2 hereof 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, the Company shall furnish to and afford the
Holders of the Transfer Restricted Securities covered by such Registration
Statement or each such Participating Broker-Dealer, as the case may be, their
counsel and the managing underwriters, if any, a reasonable opportunity to
review copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to be filed
(in each case at least 5 Business Days prior to such filing).
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period or
the Applicable Period or until consummation of the Exchange Offer, as the case
may be; 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 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 and with respect to the subsequent resale of any securities being
sold by a Participating Broker-Dealer covered by any such Prospectus.
Notwithstanding the
11
foregoing, if the Board of Directors of the Company determines in good faith
that it is in the best interests of the Company not to disclose the existence
of or facts surrounding any proposed or pending material event or transaction
involving the Company or its subsidiaries, the Company may (i) in the event a
Shelf Registration Statement has been filed, allow the Shelf Registration
Statement to fail to be effective or usable as a result of such nondisclosure
for up to 60 days during the Effectiveness Period, but in no event for any
period in excess of 30 consecutive days, and (ii) in the event the Exchange
Offer is consummated, allow the Exchange Offer Registration Statement to fail
to be effective or usable as a result of such non-disclosure for up to 15
days during the Applicable Period. The Company shall be deemed not to have
used its best efforts to keep a Registration Statement effective during the
Applicable Period if it voluntarily takes any action that would result in
selling Holders of the Transfer Restricted Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being
able to sell such Transfer Restricted Securities or such Exchange 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 paragraph 5(k) hereof and the last paragraph of this Section 5.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof 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 Holders of
Transfer Restricted Securities, or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, promptly (but
in any event within 5 Business Days), and, if requested by such Persons, 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 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) if at any time when a
prospectus is required by the Securities Act to be delivered in connection with
sales of the Transfer Restricted Securities or resales of Exchange Securities by
Participating Broker-Dealers, the representations and warranties of the Company
contained in any agreement (including any underwriting agreement), contemplated
by Section 5(n) hereof cease to be true and correct, (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
Transfer Restricted Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) 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
12
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 light of
the circumstances under which they were made, not misleading, and (vi) of the
determination by the Company that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its 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 or suspending the qualification
(or exemption from qualification) of any of the Transfer Restricted Securities
or the Exchange Securities for sale in any jurisdiction, and, if any such order
is issued, to use its best efforts to obtain the withdrawal of any such order at
the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to
Section 3 and if requested by the managing underwriter or underwriters (if any),
or the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold in connection with an underwritten offering or
any Participating Broker-Dealer, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as the managing
underwriter or underwriters (if any), such Holders, any Participating
Broker-Dealer or counsel for any of them determines is necessary to be included
therein, (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as 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 make amendments to such
Registration Statement.
(f) If (l) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period, furnish to each
selling Holder of Transfer Restricted Securities and to each such Participating
Broker-Dealer who so requests and to counsel and each managing underwriter, if
any, at the sole expense of the Company, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment thereto,
including financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) If (l) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period, deliver to each Holder
of Transfer Restricted Securities, or each such Participating
Broker-Dealer, as the case may be, their respective counsel, and the
underwriters, if any, at the sole expense of the Company, as many copies of
the Prospectus or Prospectuses (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 this Section 5, the Company hereby
consents to the use of such Prospectus and each amendment or supplement
thereto by each of the Holders of Transfer Restricted Securities or each such
Participating
13
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
Transfer Restricted Securities covered by, or the sale by Participating
Broker-Dealers of the Exchange Securities pursuant to, such Prospectus and
any amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted
Securities or Exchange Securities or any delivery of a Prospectus contained in
the Exchange Offer Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, use its
reasonable best efforts to register or qualify (and to cooperate with selling
Holders of Transfer Restricted Securities or each such Participating
Broker-Dealer, as the case may be, 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
Transfer Restricted Securities) 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 underwriter or underwriters
reasonably request; PROVIDED, HOWEVER, that where Exchange Securities held by
Participating Broker-Dealers or Transfer Restricted Securities are offered other
than through an underwritten offering, the Company agrees to cause its counsel
to perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(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 Exchange Securities held by Participating
Broker-Dealers or the Transfer Restricted 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 any such jurisdiction where it is not then so
subject.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Transfer Restricted
Securities and the managing underwriter or underwriters, if any, to facilitate
the timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with the Common
Depositary; and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may request.
(j) Use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement and the Exchange
Securities to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the selling Holders thereof or the
underwriter or underwriters, if any, to dispose of such Transfer Restricted
Securities or Exchange Securities, except as may be required solely as a
consequence of the nature of a 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.
(k) If (l) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section
14
2 hereof 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 paragraph
5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and (subject
to Section 5(b) 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 Transfer Restricted Securities being sold thereunder or to the purchasers
of the Exchange Securities to whom such Prospectus will be delivered by a
Participating Broker-Dealer, 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 light of the
circumstances under which they were made, not misleading.
(l) Unless the rating in effect for the Securities is equally
applicable and in effect for the Exchange Securities and the Transfer Restricted
Securities, use its best efforts to cause the Transfer Restricted Securities
covered by a Registration Statement or the Exchange Securities, as the case may
be, to be rated with the appropriate rating agencies.
(m) Prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities, provide a CUSIP
number, ISIN Code and Common Code for the Transfer Restricted Securities or
Exchange Securities, as the case may be.
(n) In connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Securities and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order to
facilitate the registration or the disposition of such Transfer Restricted
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, properties 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 debt securities similar to the 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 covering the matters customarily covered in opinions requested in
underwritten offerings of debt similar to the Securities and such other matters
as may be reasonably requested by the managing underwriter or underwriters;
(iii) obtain "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 "comfort" letters in connection with underwritten offerings of debt
similar to the Securities and such other matters as reasonably requested by the
managing underwriter or underwriters; and (iv) if an underwriting agreement is
entered into, the same shall contain
15
indemnification provisions and procedures no less favorable than those set
forth in Section 7 hereof (or such other provisions and procedures acceptable
to Holders of a majority in aggregate principal amount of Transfer Restricted
Securities covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section, including, without limitation, the
Holders of Transfer Restricted Securities and the underwriters. The above
shall be done at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period, make available for
inspection by any selling Holder of such Transfer Restricted Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Transfer Restricted
Securities, if any, and any attorney, accountant or other agent retained by any
such selling Holder or each such Participating Broker-Dealer, as the case may
be, or underwriter (collectively, the "INSPECTORS"), at the offices where
normally kept, during reasonable business hours, all 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 the Inspectors unless (i) the disclosure
of such Records is necessary to avoid or correct a misstatement or 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 or indirectly, 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 or (iv)
the information in such Records has been made generally available to the public.
Each selling Holder of such Transfer Restricted Securities and each such
Participating Broker-Dealer will be required to agree that information obtained
by it as a result of such inspections shall be deemed confidential and shall not
be used by it as the basis for any market transactions in the securities of the
Company unless and until such information is generally available to the public.
Each selling Holder of such Transfer Restricted Securities and each such
Participating Broker-Dealer or underwriter, as the case may be, will be required
further to agree that it will, upon learning that disclosure of such Records is
sought in a court of competent jurisdiction, give notice to the Company and
allow the Company at its sole expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential.
(p) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Securities, as the case may be, and cause the
applicable Indenture or the trust indenture provided for in Section 2(a) hereof,
as the case may be, to be qualified under the Trust Indenture Act not later than
the effective date of the first Registration Statement relating to the Transfer
Restricted Securities; and in connection therewith, cooperate with the trustee
under any
16
such indenture and the Holders of the Transfer Restricted Securities,
to effect such changes to such indenture as may be required for such indenture
to be so qualified in accordance with the terms of the Trust Indenture Act;
furnish the trustee with an officer's certificate certifying that such indenture
has been so qualified under the Trust Indenture Act and that the Transfer
Restricted Securities are the subject of a Registration Statement; 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.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders 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 at the end
of any fiscal quarter in which Transfer Restricted 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.
(r) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Transfer Restricted Securities by 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 cause to be marked, on such Transfer Restricted
Securities that such Transfer Restricted Securities are being cancelled in
exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be; in no event shall such Transfer Restricted Securities be marked as
paid or otherwise satisfied.
(s) Cooperate with each seller of Transfer Restricted
Securities covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(t) Use its best efforts to take all other steps necessary or
advisable to effect the registration of the Exchange Securities and/or Transfer
Restricted Securities covered by a Registration Statement contemplated hereby.
(u) Make an application to list the Exchange Securities on the
Luxembourg Stock Exchange and to use its best efforts to have the Exchange
Securities admitted to trading on the Luxembourg Stock Exchange as promptly as
practicable and thereafter maintained such listing.
The Company may require each seller of Transfer Restricted
Securities as to which any Shelf Registration Statement is being effected to (i)
furnish to the Company such information regarding such seller and the
distribution of such Transfer Restricted Securities and (ii) make such
representations, in each case as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Transfer Restricted
Securities of any seller who unreasonably fails to furnish such information or
make such representations within a reasonable time after receiving such request.
Each seller as to which any Shelf
17
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer agrees by acquisition of such Transfer Restricted
Securities or Exchange Securities to be sold by such Participating
Broker-Dealer, as the case may be, that, upon actual receipt of any notice from
the Company of the happening of any event of the kind described in Section
5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi) hereof, such Holder will forthwith
discontinue disposition of such Transfer Restricted Securities covered by such
Registration Statement or Prospectus or Exchange Securities to be sold by such
Holder or Participating Broker-Dealer, as the case may be, until such Holder's
or Participating Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "ADVICE") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Company shall give any 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 Transfer Restricted
Securities covered by such Registration Statement or Exchange Securities to be
sold by such Participating Broker-Dealer, as the case may be, shall have
received (x) the copies of the supplemented or amended Prospectus contemplated
by Section 5(k) hereof 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 Registration Statement or a Shelf Registration
Statement is filed or becomes effective, 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, (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
Transfer Restricted Securities or Exchange Securities and determination of the
eligibility of the Transfer Restricted Securities or Exchange Securities for
investment under the laws of such jurisdictions (x) where the holders of
Transfer Restricted Securities are located, in the case of the Exchange
Securities, or (y) as provided in Section 5(h) hereof, in the case of Transfer
Restricted Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), and (C) all expenses and fees in
connection with the obtaining of any approval from any relevant authority in
Sweden; (ii) printing expenses, including, without limitation, the printing of
prospectuses if the printing of prospectuses is requested by the managing
underwriter or underwriters, if any, by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities included in any
Registration Statement or by any Participating Broker-Dealer, as the case may
be, (iii) fees and disbursements of counsel for the Company and fees and
disbursements of special counsel for the sellers of Transfer Restricted
Securities (subject to the provisions of Section 6(b) hereof), (iv) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident to such
performance), (v) rating agency fees, if any, and
18
any fees associated with making the Exchange Securities eligible for trading
through Euroclear and Clearstream Banking, (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) reasonable 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, including, without limitation, the
Luxembourg Stock Exchange, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales agreements, indentures and any other documents
necessary in order to comply with this Agreement.
(b) The Company shall reimburse the Holders of the Transfer
Restricted Securities being registered in a Shelf Registration Statement for the
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 Transfer Restricted Securities to be included in such Registration
Statement (which counsel shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ unless otherwise
affirmatively stated by the Holders) and other out-of-pocket expenses of such
Holders of Transfer Restricted Securities incurred in connection with the
registration and sale of the Transfer Restricted Securities pursuant to a Shelf
Registration Statement or the exchange of Transfer Restricted Securities
pursuant to the Exchange Offer.
7. INDEMNIFICATION AND CONTRIBUTION
(a) The Company shall indemnify and hold harmless each Holder
of Transfer Restricted Securities offered pursuant to a Shelf Registration
Statement, each Participating Broker-Dealer selling Exchange Securities during
the Applicable Period and the Initial Purchasers, and their respective
affiliates, their respective officers, directors, employees, representatives and
agents, and each Person, if any, who controls any such Person within the meaning
of the Securities Act or the Exchange Act (each a "PARTICIPANT"), from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of Transfer Restricted
Securities and Exchange Securities as the case may be) to which any such Holder,
Broker-Dealer or Initial Purchaser may become subject, whether commenced or
threatened under the Securities Act, the Exchange Act, any other supra-national,
federal, regional, local and foreign statutory law or regulation at common law
or otherwise, insofar a such loss, claim, damage, liability or action arises out
of, or is based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or in
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the Transfer Restricted Securities
under the securities laws of any state or other jurisdiction (such application,
document or information being hereinafter called a "BLUE SKY APPLICATION"), or
(ii) the omission or alleged omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein not
misleading, and shall reimburse each Participant promptly upon demand for any
legal or other costs, charges and expenses reasonably incurred by that
Participant in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with
19
any such loss, claim, damage, liability or action as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, an untrue statement or alleged untrue
statement in or omission or alleged omission from the Registration Statement
or Prospectus, or in any such amendment or supplement, or in any Blue Sky
Application in reliance upon and in conformity with the written information
furnished to the Company by or on behalf of any Participant specifically for
inclusion therein; and PROVIDED, FURTHER, that with respect to any such
untrue statement in or omission from any preliminary prospectus the indemnity
agreement contained in this Section 7(a) shall not inure to the benefit of
any such Participant to the extent that the sale to the Person asserting any
such loss, claim, damage, liability or action was an initial resale by such
Participant and any such loss, claim, damage, liability or action of or with
respect to such Participant results from the fact that both (A) to the extent
required by applicable law, a copy of the Prospectus was not sent or given to
such Person at or prior to the written confirmation of the sale of such
securities to such Person and (B) the untrue statement in or omission from
such preliminary prospectus was corrected in the Prospectus unless, in either
case, such failure to deliver the Prospectus was a result of non-compliance
by the Company with Section 5(g) of this Agreement.
(b) Each Holder of Transfer Restricted Securities offered
pursuant to a Shelf-Registration Statement, each Participating Broker-Dealer
selling Exchange Securities during the Applicable Period and the Initial
Purchasers (each a "PARTICIPANT INDEMNIFYING PARTY") severally and not jointly,
shall indemnify and hold harmless the Company, its affiliates, their respective
officers, directors, employees, representatives and agents, and each Person, if
any, who controls the Company within the meaning of the Securities Act or the
Exchange Act (collectively referred to for purposes of this Section 7(b) and
Section 7(d) as the Company), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Company or any such director, officer or controlling Person may become subject,
whether commenced or threatened under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained (A) in any preliminary prospectus or the Registration Statement
or Prospectus, or in any amendment or supplement thereto, or (B) in any Blue Sky
Application or (ii) the omission or alleged omission to state therein, a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with the written information furnished to the
Company by that Participant Indemnifying Party specifically for inclusion
therein, and shall reimburse the Company for any legal or other costs, charges
and expenses reasonably incurred by the Company in connection with investigating
or defending or preparing to defend against or appearing as a third party
witness in connection with any such loss, claim, damage, liability or action as
such expenses are incurred.
(c) Promptly after the receipt by an indemnified party under
this Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; PROVIDED,
20
HOWEVER, that the failure to notify the indemnifying party shall not relieve
it from any liability which it may have under this Section 7 except to the
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and, PROVIDED, FURTHER, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under this
Section 7. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof other than
reasonable costs of investigation; PROVIDED, HOWEVER, that an indemnified
party shall have the right to employ its own counsel in any such action, but
the fees, expenses and other charges of such counsel for the indemnified
party will be at the expense of such indemnified party unless (1) the
employment of counsel by the indemnified party has been authorized in writing
by the indemnifying party, (2) the indemnified party has reasonably concluded
(based upon advice of counsel to the indemnified party) that there may be
legal defenses available to it or other indemnified parties that are
different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based upon advice of counsel to
the indemnified party) between the indemnified party and the indemnifying
party (in which case the indemnifying party will not have the right to direct
the defense of such action on behalf of the indemnified party) or (4) the
indemnifying party has not in fact employed counsel reasonably satisfactory
to the indemnified party to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more than
one separate firm of attorneys (in addition to any local counsel) at any one
time for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in sections 7(a) and 7(b)
shall use all reasonable efforts to cooperate with the indemnifying party in
the defense of any such action or claim. No indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff in
any such action, the indemnifying party agrees to indemnify and hold harmless
any indemnified party from and against any loss or liability by reason of
such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be
unreasonably withheld), effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceedings.
(d) If the indemnification provided for in this Section 7
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party under Section 7(a) or 7(b), then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to
21
the amount paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect thereof, (i) in such
proportion as shall be appropriate to reflect the relative benefits received
by the Company on the one hand and the Participants on the other from the
offering of the 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 Company on the one hand and the
Participants on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Participants on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities (before deducting expenses) received by
or on behalf of the Company bear on the one hand, and the total underwriting
discounts and commissions received by the Initial Purchasers with respect to
the Securities purchased under the Purchase Agreement, on the other hand,
bear to the total gross proceeds from the offering of the Securities under
the Purchase Agreement. The relative fault 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 the Company or information supplied by the Company on the one hand
or the Participants on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Participants
agree that it would not be just and equitable if contributions pursuant to
this Section 7(d) were to be determined by PRO RATA allocation (even if the
Participants were treated as one entity for such purpose) or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7(d) shall be
deemed to include, for purposes of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending or preparing to defend any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Participant shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities purchased by it were resold exceeds the amount
of any damages which such Purchaser has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Participant's obligations to contribute as provided in
this Section 7(d) are several in proportion to their respective purchase
obligations and not joint.
The obligations of the Company and any Participant
Indemnifying Party in this Section 7 are in addition to any other liability that
the Company or any Participant Indemnifying Party, as the case may be, may
otherwise have, including in respect of any breaches of representations,
warranties and agreements made herein by any such party.
8. RULE 144A
The Company covenants to furnish to the holders of the
Securities and to prospective investors, upon the request of such holder, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act so long as the Securities are not freely transferable under the
Securities Act.
22
9. UNDERWRITTEN REGISTRATIONS
If any of the Transfer Restricted Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and shall be reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities may participate in
any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Company represents,
warrants and agrees that it has not, as of the date hereof, nor will it,
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 Transfer Restricted Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Company will not enter into any
agreement with respect to any of its securities which will grant to any
Person piggy-back registration rights with respect to the Exchange Offer
Registration Statement or the Shelf Registration Statement.
(b) ADJUSTMENTS AFFECTING TRANSFER RESTRICTED SECURITIES.
The Company shall not, directly or indirectly, take any action with respect
to the Transfer Restricted Securities as a class that would adversely affect
the ability of the Holders of Transfer Restricted Securities to include such
Transfer Restricted Securities in a registration undertaken pursuant to this
Agreement.
(c) 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 (A) the Holders of not less than a
majority in aggregate principal amount of the then outstanding Transfer
Restricted Securities with respect to the Transfer Restricted Securities and
(B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Securities held by all
Participating Broker-Dealers with respect to Exchange Securities; PROVIDED,
HOWEVER, that Section 7 and this Section 10(c) may not be amended, modified
or supplemented without the prior written consent of each Holder and each
Participating Broker-Dealer (including any Person who was a Holder or
Participating Broker-Dealer of Transfer Restricted Securities or Exchange
Securities, as the case may be, 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 the Transfer Restricted Securities whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Transfer
23
Restricted Securities may be given by Holders of at least a majority in
aggregate principal amount of the Transfer Restricted Securities being sold
by such Holders pursuant to such Registration Statement; PROVIDED, HOWEVER,
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 either
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:
(1) if to a Holder of the Transfer Restricted
Securities or any Participating Broker-Dealer, at the most current
address of such Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar under the applicable
Indenture, with a copy in like manner to the Initial Purchasers as
follows:
Deutsche Bank AG London
Winchester House
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
UBS Warburg Ltd.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Facsimile No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Cazenove
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(2) if to the Initial Purchasers, at the
addresses specified in Section 10(d)(1);
(3) if to the Company, as follows:
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ (publ)
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Facsimile No: ▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Facsimile No.: 44 020 7726 9610
Attention: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Any such statements, requests, notices or agreements shall
take effect at the time of receipt thereof. The Company shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf
of the Initial Purchasers.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to each Trustee at
the address and in the manner specified in each 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 and 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 to the extent such successor or assign holds Transfer Restricted 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.
(i) REMEDIES. In the event of a breach by the Company or
by any Holder of any of their obligations under this Agreement, each Holder
or the Company, as the case may be, in addition to being entitled to exercise
all rights granted by law, including recovery of damages (other than the
recovery of damages for a breach by the Company of its obligations under
Sections 2 or 3 hereof for which liquidated damages have been paid pursuant
to Section 4 hereof), will be entitled to specific performance of its rights
under this Agreement. The Company and each Holder agree that monetary damages
would not be adequate compensation
25
for any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agree that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
(i) SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE; WAIVER. To the fullest extent permitted by applicable law, the
Company irrevocably submits to the non-exclusive jurisdiction of any federal
or state court in the Borough of Manhattan in the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, in any suit or proceeding
based on or arising under this Agreement, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation (the "Authorized Agent"), for the later of a period
of ten years or until such time as no Notes are outstanding as its authorized
agent upon whom process may be served in any such suit or proceeding. The
Company represents that it has notified the Authorized Agent of such
designation and appointment and that the Authorized Agent has accepted the
same in writing. The Company hereby irrevocably authorizes and directs its
Authorized Agent to accept such service. The Company further agrees that
service of process upon its Authorized Agent and written notice of said
service to the Company mailed by first class mail or delivered to its
Authorized Agent shall be deemed in every respect effective service of
process upon the Company in any such suit or proceeding. Nothing herein shall
affect the right of any person to serve process in any other manner permitted
by law. The Company agrees that a final action in any such suit or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other lawful manner. Notwithstanding the foregoing, any
action against the Company arising out of or based on this Agreement or the
transactions contemplated hereby may also be instituted by any of the Initial
Purchasers, their respective officers and employees or any person who
controls any of the Initial Purchasers within the meaning of the Securities
Act in any competent court in the Kingdom of Sweden, and the Company
expressly accepts the jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted
by law, any immunity to jurisdiction to which it may otherwise be entitled
(including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of or based on this Agreement or the transactions
contemplated hereby.
The provisions of this Section 10(j) are intended to be
effective upon the execution of this Agreement without any further action by the
Company or the Initial Purchasers and the introduction of a true copy of this
Agreement into evidence shall be conclusive and final evidence as to such
matters.
(k) CURRENCY INDEMNITY. The Company shall indemnify each
Participant against any loss incurred by it as a result of any judgment or
order being given or made and expressed and paid in a currency (the "Judgment
Currency") other than Euros and as a result of any variation as between (i)
the rate of exchange at which the Euro amount is converted into the Judgment
Currency for the purpose of such judgment or order and (ii) the spot rate of
exchange in
New York,
New York at which such Participant on the date of
payment of such judgment or
26
order is able to purchase Euros with the amount of the Judgment Currency
actually received by such Participant. If the Euros so purchased are greater
than the amount originally due to such Participant hereunder, such
Participant agrees to pay to the Company an amount equal to the excess of the
Euros so purchased over the amount originally due to such Participant
hereunder. The foregoing shall constitute a separate and independent
obligation of the Company and the Participant, as the case may be, and shall
continue in full force and effect notwithstanding any such judgment or order
as aforesaid. The term "spot rate of exchange" shall include any premiums and
costs of exchange payable in connection with the purchase of, or conversion
into, Euros.
(l) SEVERABILITY. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law. 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.
(m) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES.
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or its "affiliates" (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(n) THIRD PARTY BENEFICIARIES. Holders of Transfer
Restricted Securities and Participating Broker-Dealers are intended third
party beneficiaries of this Agreement, and this Agreement may be enforced by
such Persons.
(o) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement and each 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 Purchasers 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.
[THE REMAINDER OF THIS PAGE HAS BEEN LEFT DELIBERATELY BLANK]
27
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
PREEM HOLDINGS AB (PUBL)
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
DEUTSCHE BANK AG LONDON
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
AUTHORIZED REPRESENTATIVE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
AUTHORIZED REPRESENTATIVE
UBS AG, acting through its business group
UBS WARBURG
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
AUTHORIZED REPRESENTATIVE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
AUTHORIZED REPRESENTATIVE