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EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
Dated as of October 28, 1998
by and between
VERITAS DGC INC.
and
WARBURG DILLON READ LLC
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This Registration Rights Agreement (the "Agreement") is made and
entered into as of October 28, 1998 by and between VERITAS DGC INC. (the
"Issuer") and WARBURG DILLON READ LLC (the "Initial Purchaser"). The execution
and delivery of this Agreement is a condition to the obligations of the Initial
Purchaser to purchase $60,000,000 of the 9 3/4% Senior Notes due 2003, Series B
of the Issuer under the Purchase Agreement, dated October 22, 1998 (the
"Purchase Agreement"), by and between the Issuer and the Initial Purchaser.
The Issuer and the Initial Purchaser hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission pursuant thereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: As that term is defined in the Indenture.
Closing Date: The date that the Notes are purchased by the Initial
Purchaser pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Notes to be issued in the Exchange Offer, (ii) the maintenance
of such Registration Statement continuously effective and the keeping of the
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 3(b) of this Agreement and (iii) the delivery by the Issuer
to the Registrar under the Indenture of New Notes in the same aggregate
principal amount as the aggregate principal amount of Old Notes that were so
tendered.
Damages Payment Date: With respect to the Notes, each Interest Payment
Date.
Effectiveness Target Date: As defined in Section 5 of this Agreement.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
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Exchange Offer: The registration under the Act by the Issuer of the New
Notes pursuant to a Registration Statement pursuant to which the Issuer offers
the Holders of all outstanding Old Notes that are Transfer Restricted Securities
the opportunity to exchange all such outstanding Old Notes that are Transfer
Restricted Securities held by such Holders for New Notes in an aggregate
principal amount equal to the aggregate principal amount of the Old Notes that
are Transfer Restricted Securities tendered in such exchange offer by such
Holders.
Exchange Offer Effective Date: The date on which the Exchange Offer
Registration Statement is declared effective by the Commission.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Notes to (i) certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act, and (ii) other eligible
purchasers pursuant to Regulation S under the Act.
Holders: As defined in Section 2(b) of this Agreement.
Indenture: The Indenture, dated as of October 28, 1998, by and between
the Issuer and State Street Bank and Trust Company, as trustee (the "Trustee"),
pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with its terms.
Initial Purchaser: Warburg Dillon Read LLC.
Interest Payment Date: As defined in the Notes.
Issue Date: The date the Old Notes are originally issued (October 28,
1998).
NASD: National Association of Securities Dealers, Inc.
New Notes: The 9 3/4% Senior Notes due 2003, Series C of the Issuer to
be issued pursuant to the Indenture in connection with the Exchange Offer and
evidencing the same debt as the Old Notes.
Notes: Old Notes and New Notes.
Old Notes: The 9 3/4% Senior Notes due 2003, Series B of the Issuer to
be issued pursuant to the Indenture on the Closing Date.
Participating Broker Dealer: As defined in Section 6(a)(iii) of this
Agreement.
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Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
and supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
Registration Default: As defined in Section 5 of this Agreement.
Registration Statement: Any registration statement of the Issuer
relating to (a) an offering of New Notes pursuant to an Exchange Offer or (b)
the registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement that is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including pre- and post-effective
amendments) and all exhibits and material incorporated by reference or deemed to
be incorporated by reference, if any, therein.
Shelf Filing Deadline: As defined in Section 4(a) of this Agreement.
Shelf Registration Statement: As defined in Section 4(a) of this
Agreement.
Subsidiary: With respect to any Person, any other Person of which a
majority of the equity ownership or the voting securities is at the time owned,
directly or indirectly, by such Person or by one or more other subsidiaries of
such Person or a combination thereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
77aaa-77bbbb), as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note until, with respect to each
such Note, the earliest to occur of (i) the date on which each such Old Note has
been exchanged by a Person other than a Broker-Dealer for a New Note in the
Exchange Offer, (ii) following the exchange by a Broker-Dealer in the Exchange
Offer of an Old Note for a New Note, the date on which such New Note is sold to
a purchaser who receives from such Broker-Dealer on or prior to the date of such
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, (iii) the date on which such Note has been effectively registered
under the Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Note is distributed to the public
pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Issuer are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement.
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SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person beneficially owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless, due to a change in law or Commission policy after the date
hereof, the Exchange Offer shall not be permissible under applicable federal law
or Commission policy, the Issuer shall (i) cause to be filed with the Commission
as soon as practicable on or prior to 60 days after the Closing Date, a
Registration Statement under the Act relating to the New Notes and the Exchange
Offer and (ii) use its best efforts to cause such Registration Statement to be
declared effective by the Commission as soon as practicable on or prior to 120
days after the Closing Date. In connection with the foregoing, the Issuer shall
(A) file all pre-effective amendments to such Registration Statement as may be
necessary to cause such Registration Statement to become effective, (B) if
applicable, file a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Act, (C) cause all necessary filings in
connection with the registration and qualification of the New Notes to be made
under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer (provided, however, that the Issuer shall not
be obligated to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified or to take any action that would subject it to general
service of process or taxation in any jurisdiction where it is not so subject,
except service of process with respect to the offering and sale of the Notes)
and (D) upon the effectiveness of such Registration Statement, commence the
Exchange Offer and use its best efforts to issue on or prior to 45 days after
the Exchange Offer Effective Date, New Notes in exchange for all Old Notes
tendered in the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting registration of the New Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of New Notes held by
Broker-Dealers as contemplated by Section 3(c) below. If, after such Exchange
Offer Registration Statement initially is declared effective by the Commission,
the Exchange Offer or the issuance of New Notes under the Exchange Offer or the
resale of New Notes received by Broker-Dealers in the Exchange Offer as
contemplated by Section 3(c) below is interfered with by any stop order,
injunction or other order or requirement of the Commission or any other
governmental agency or court, such Registration Statement shall be deemed not to
have become effective for purposes of this Agreement during the period that such
stop order, injunction or other similar order or requirement shall remain in
effect.
(b) The Issuer shall cause the Exchange Offer Registration Statement to
be effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange
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Offer; provided, however, that in no event shall such period be less than 20
business days. The Issuer shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. The Issuer shall only offer to
exchange New Notes for Old Notes in the Exchange Offer, and only the New Notes
shall be registered under the Exchange Offer Registration Statement.
(c) The Issuer shall indicate in a "Plan of Distribution" section
contained in the Prospectus included in the Exchange Offer Registration
Statement that any Broker-Dealer that holds Old Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Issuer), may exchange such Old
Notes pursuant to the Exchange Offer; provided, however, that such Broker-Dealer
may be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the New Notes received by such Broker-Dealer in
the Exchange Offer. Such "Plan of Distribution" section shall allow the use of
the Prospectus by all Persons subject to the prospectus delivery requirements of
the Act, including Participating Broker-Dealers, and shall also contain all
other information with respect to such resales by Broker-Dealers that the
Commission may require to permit such resales pursuant thereto, but such "Plan
of Distribution" shall not name any such Broker-Dealer or disclose the amount of
Notes held by any such Broker-Dealer except to the extent required by the
Commission.
The Issuer shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time for such period of time as such Broker-Dealers must
comply with prospectus delivery requirements of the Exchange Act in order to
resell the Notes. The Issuer shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any time
during such period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuer is not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy or (ii) any Holder of Transfer Restricted Securities shall notify the
Issuer within 20 business days of the commencement of the Exchange Offer that
such Holder (A) is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) may not resell the New Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
is a Broker-Dealer and holds Old Notes (including the Initial Purchaser who
holds Old Notes as part of
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an unsold allotment from the original offering of the Notes) acquired directly
from the Issuer or one of its affiliates or (iii) the Issuer does not consummate
the Exchange Offer within 45 days following the effectiveness date of the
Exchange Offer Registration Statement, then the Issuer shall (x) cause to be
filed a shelf registration statement pursuant to Rule 415 under the Act, which
may be an amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement"), on or prior to the earliest to occur
of (1) the 45th day after the date on which the Issuer determines that it is not
required to file the Exchange Offer Registration Statement or (2) the 45th day
after the date on which the Issuer receives notice from a Holder of Transfer
Restricted Securities as contemplated by clause (ii) above (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration Statement shall
provide for resales of all Transfer Restricted Securities the Holders of which
shall have provided the information required pursuant to Section 4(b) of this
Agreement, and (y) use its best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the 60th day
after the Shelf Filing Deadline. The Issuer shall use its best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) of this Agreement
to the extent necessary to ensure that it is available for resales of Notes by
the Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a) and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a continuous period of two years following the
date on which such Shelf Registration Statement becomes effective under the Act
or such shorter period that will terminate when all the Notes covered by the
Shelf Registration Statement have been sold pursuant to such Shelf Registration
Statement.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Issuer in writing, within 15 business days after receipt of a request
therefor, such information regarding such Holder as the Issuer may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included in such Shelf Registration
Statement. Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Issuer all information required to be
disclosed to make the information previously furnished to the Issuer by such
Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement (or, if such date is not a Business Day, the next succeeding
Business Day), (ii) any of such Registration Statements has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
Exchange Offer has not been Consummated within 165 days after the Issue Date
(or, if such date is not a Business Day, the next succeeding Business Day) or
(iv) any Registration Statement required by this Agreement is filed and
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declared effective but shall thereafter cease to be effective or usable in
connection with resales of Transfer Restricted Securities during the periods
required by this Agreement (each such event referred to in clauses (i) through
(iv), a "Registration Default"), the Issuer hereby agrees to pay liquidated
damages to each Holder of Transfer Restricted Securities with respect to the
first 90-day period immediately following the occurrence of such Registration
Default, in an amount equal to $.05 per week per $1,000 principal amount of
Notes constituting Transfer Restricted Securities held by such Holder for each
week or portion thereof that the Registration Default continues. The amount of
the liquidated damages shall increase by an additional $.05 per week per $1,000
in principal amount of Notes constituting Transfer Restricted Securities with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of liquidated damages of $.30 per week per
$1,000 in principal amount of Notes constituting Transfer Restricted Securities.
Notwithstanding the foregoing, the Issuer shall not be required to pay
liquidated damages to each Holder of Transfer Restricted Securities if the
Registration Default arises from the failure of the Issuer to file, or cause to
become effective, a Shelf Registration Statement within the time period required
by Section 4 of this Agreement and such Registration Default is by reason of the
failure of the Holders to provide the information regarding the Holder
reasonably requested by the Issuer, the NASD or any other regulatory agency
having jurisdiction over any of the Holders at least 10 business days prior to
such Registration Default. All accrued liquidated damages shall be paid by the
Issuer on each Damages Payment Date to the Holders in the same manner as
interest is paid to such Holders. Following the cure of all Registration
Defaults relating to any particular Transfer Restricted Securities, the accrual
of liquidated damages with respect to such Transfer Restricted Securities will
cease.
All obligations of the Issuer set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time
such security ceases to be a Transfer Restricted Security shall survive until
such time as all such obligations with respect to such Transfer Restricted
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Issuer shall comply with all of the provisions of Section
6(c) below, shall use its best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and shall comply with all of
the following provisions:
(i) If, due to a change in law or Commission policy after the
date hereof, in the reasonable opinion of counsel to the Issuer there
is a question as to whether the Exchange Offer is permitted by
applicable federal law or Commission policy, the Issuer hereby agrees
to seek a no-action letter or other favorable decision from the
Commission allowing the Issuer to Consummate an Exchange Offer for such
Old Notes. The Issuer hereby agrees to pursue the issuance of such a
no-action letter or favorable decision to the Commission staff
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level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Issuer hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission an analysis prepared by
special counsel to the Issuer setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursue a resolution (which need
not be favorable) by the Commission of such submission. The Initial
Purchaser shall be given prior notice of any action taken by the Issuer
under this clause (i).
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Issuer,
prior to the Consummation of the Exchange Offer, a written
representation to the Issuer (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Issuer, (B) it is
not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a
distribution of the New Notes to be issued in the Exchange Offer and
(C) it is acquiring the New Notes in its ordinary course of business.
In addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Issuer's preparations for the Exchange
Offer.
(iii) The Issuer and the Initial Purchaser acknowledge that
the staff of the Commission has taken the position that any
broker-dealer that owns New Notes that were received by such
broker-dealer for its own account in the Exchange Offer (a
"Participating Broker-Dealer") may be deemed to be an "underwriter"
within the meaning of the Act and must deliver a prospectus meeting the
requirements of the Act in connection with any resale of such New Notes
(other than a resale of an unsold allotment resulting from the original
offering of the Notes).
The Issuer and the Initial Purchaser also acknowledge that it is the
Commission staff's position that if the Prospectus contained in the Exchange
Offer Registration Statement includes a plan of distribution containing a
statement to the above effect and the means by which Participating
Broker-Dealers may resell the New Notes, without naming the Participating
Broker-Dealers or specifying the amount of New Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Act in connection with resales of New
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf
Registration Statement is required by this Agreement, the Issuer shall comply
with all the provisions of Section 6(c) of this Agreement and shall use its best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution of such Transfer Restricted Securities and, in
connection therewith, the Issuer will as expeditiously as possible prepare and
file with the Commission a Shelf Registration Statement relating to the
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registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution of such Transfer Restricted
Securities.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus, to the extent that the same are required
to be available to permit resales of Notes by Broker-Dealers), the Issuer shall:
(i) use its best efforts to keep such Registration Statement
continuously effective for the applicable time period required
hereunder and provide all requisite financial statements for the period
specified in Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain a material
misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by
this Agreement, the Issuer shall promptly notify the Holders to suspend
use of the Prospectus, and the Holders shall suspend use of the
Prospectus, and such Holders shall not communicate non-public
information to any third party, in violation of the securities laws,
until the Issuer has made an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such misstatement
or omission, and, in the case of either clause (A) or (B), the Issuer
shall use its best efforts to cause such amendment to be declared
effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to such Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 of this Agreement, as
applicable, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act during the applicable time period required
hereunder and to comply fully with the applicable provisions of Rules
424 and 430A under the Act in a timely manner; and comply with the
provisions of the Act and the Exchange Act with respect to the
disposition of all Transfer Restricted Securities covered by such
Registration Statement during such period in accordance with the
intended method or methods of distribution by the sellers of such
securities set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented;
(iii) advise the underwriter(s), if any, the Initial
Purchaser, and, in the case of a Shelf Registration Statement, each of
the selling Holders promptly and, if requested by such Persons, to
confirm such advice in writing, (A) when the Prospectus or any
prospectus
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supplement or post-effective amendment has been filed and, with respect
to any Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the
Commission for amendments to the Registration Statement or amendments
or supplements to the Prospectus or for additional information relating
to such Registration Statement or Prospectus, (C) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement to such Registration Statement
or Prospectus, as the case may be, or any document incorporated by
reference in such Registration Statement or Prospectus untrue in any
material respect, or that requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to
make the statements in such Registration Statement or Prospectus not
misleading and that in the case of the Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, or
any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state
securities or Blue Sky laws, the Issuer shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible
time;
(iv) furnish to each of the underwriter(s), if any, the
Initial Purchaser and, in the case of a Shelf Registration Statement,
each of the selling Holders before filing with the Commission, copies
of any Registration Statement or any Prospectus included in such
Registration Statement or Prospectus or any amendments or supplements
to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the
reasonable review of such underwriter(s), if any, the Initial
Purchaser, and such Holders for a period of at least five business
days, and the Issuer will not file any such Registration Statement or
Prospectus or any amendment or supplement to any such Registration
Statement or Prospectus, as the case may be, (including all such
documents incorporated by reference) to which any underwriter, Initial
Purchaser or selling Holder shall reasonably object within five
business days after the receipt of such Registration Statement or
Prospectus. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Registration Statement,
Prospectus, amendment or supplement, as applicable, as proposed to be
filed, contains a material misstatement or omission;
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(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
(a) provide copies of such document to the selling Holders and to the
underwriter(s), if any, (b) make the Issuer's representatives available
for discussion of such document and other customary due diligence
matters; provided that such discussion and due diligence shall be
coordinated on behalf of the selling Holders by one counsel designated
by and on behalf of such selling Holders and (c) include such
information in such document prior to the filing of such document as
such selling Holders or underwriter(s), if any, may reasonably request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant
retained by such selling Holders or any of the underwriter(s), if any,
at the offices where normally kept, during reasonable business hours,
all relevant financial and other records, pertinent corporate documents
and properties of the Issuer and cause the Issuer's officers, directors
and employees to supply all information reasonably requested by any
such Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof and prior
to its effectiveness; provided, however, that such persons shall first
agree in writing with the Issuer that any information that is
reasonably and in good faith designated by the Issuer in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons, unless and to the extent that (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities
laws in connection with the filing of the Shelf Registration Statement
or the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or
failure to safeguard such information by such person or (iv) such
information becomes available to such person from a source other than
the Issuer and its Subsidiaries and such source is not bound by a
confidentiality agreement;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid for Transfer Restricted Securities and any other terms of the
offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Issuer is
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, however, that the
Issuer shall not be required to take any action pursuant to this
Section 6(c)(vii) that would, in the opinion of counsel for the Issuer,
violate applicable law;
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(viii) furnish to each underwriter, if any, the Initial
Purchaser and upon request to the Issuer to a selling Holder without
charge, at least one conformed copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto,
including, upon the request of such Person, all documents incorporated
by reference therein and all exhibits to the extent requested
(including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder, each of the
underwriter(s), if any, and the Initial Purchaser, without charge, as
many copies of the Prospectus (including each preliminary prospectus)
and any amendment or supplement thereto as such Persons may reasonably
request; the Issuer hereby consents to the use of the Prospectus and
any amendment or supplement to the Prospectus by each of the selling
Holders and each of the underwriter(s), if any, in connection with the
offering and the sale of the Transfer Restricted Securities in
accordance with the terms thereof and with U.S. Federal securities laws
and Blue Sky laws covered by the Prospectus or any amendment or
supplement thereto;
(x) enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in underwritten
offerings of securities of this type) and take all such other
reasonable actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all as may be reasonably requested by any Holder of Transfer Restricted
Securities or the underwriter(s), if any, in connection with any sale
or resale of Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement; and whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Issuer shall (i) make
such representations and warranties to the Holders of such Transfer
Restricted Securities and the underwriters, if any, with respect to the
business of the Issuer and its Subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and
the Shelf Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by the
Issuer to underwriters in underwritten offerings, and confirm the same
if and when customarily requested; (ii) obtain opinions of counsel to
the Issuer and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
underwriters, if any, and special counsel to the Holders of the
Transfer Restricted Securities being sold), addressed to each selling
Holder of Transfer Restricted Securities and each of the underwriters,
if any, covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by such underwriters, if any, and special counsel to Holders
of Transfer Restricted Securities; (iii) use its best efforts to obtain
customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuer (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Issuer or of any business acquired by the Issuer or
any such subsidiary for which financial statements and financial data
is, or is required to be, included in the
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Registration Statement), addressed (where reasonably possible) to each
selling Holder of Transfer Restricted Securities and each of the
underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the selling Holders and
the underwriters, if any, than those set forth in Section 8 hereof (or
such other provisions and procedures acceptable to the Holders of a
majority in aggregate principal amount of Transfer Restricted
Securities covered by such Shelf Registration Statement and the
underwriters, if any); and (v) deliver such documents and certificates
as may be reasonably requested by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities being
sold and the underwriters, if any, to evidence the continued validity
of the representations and warranties made pursuant to clause (i) above
and to evidence compliance with any customary conditions contained in
the underwriting agreement or other agreement entered into by the
Issuer;
If at any time the representations and warranties of the
Issuer contemplated in clause (x)(i) above cease to be true and
correct, the Issuer shall so advise the Initial Purchaser and the
underwriter(s), if any, and each selling Holder promptly and, if
requested by any of them, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification (or exemption from such registration or
qualification) of the Transfer Restricted Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the
selling Holders and underwriter(s), if any, may reasonably request in
writing and do any and all other acts or things necessary or advisable
to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Registration Statement; provided,
however, that the Issuer shall not be required to register or qualify
as a foreign corporation where it is not now so qualified or to take
any action that would subject it to the service of process or to
taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so
subject;
(xii) if a Shelf Registration is filed pursuant to Section
4(b), cooperate with the selling Holders of Registrable Securities and
the managing Underwriters, if any, to facilitate the timely preparation
and delivery of one or more global 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 Depository Trust Company;
(xiii) in connection with any sale or transfer of Transfer
Restricted Securities that will result in such securities no longer
being Transfer Restricted Securities, cooperate with the selling
Holders and the underwriter(s), if any, to facilitate the timely
preparation and
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delivery of one or more global certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and enable such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to
any sale of Transfer Restricted Securities made by such underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers of such Transfer
Restricted Securities or the underwriter(s), if any, to consummate the
disposition of such Transfer Restricted Securities, subject to the
proviso contained in clause (xi) above;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D)
of this Agreement shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated in such Registration Statement
or Prospectus by reference or file any other required document so that,
as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Registration Statement will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading and the
Prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or
necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with one or more
global certificates for the Transfer Restricted Securities that are in
a form eligible for deposit with The Depository Trust Company;
(xvii) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation
by any underwriter (including any "qualified independent underwriter"
that is required to be retained in accordance with the rules and
regulations of the NASD);
(xviii) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission in regards to any
Registration Statement, and make generally available to its
securityholders, as soon as practicable, a consolidated earning
statement of the Issuer meeting the requirements of Rule 158 (which
need not be audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted Securities are
sold to underwriters in a firm commitment or reasonable best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Issuer's first fiscal
quarter commencing after the effective date of the Registration
Statement; and
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(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders to effect such changes to the
Indenture, if any, as may be required for such Indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use
its best efforts to cause the Trustee to execute, all customary
documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Issuer of the existence of any fact of
the kind described in Section 6(c)(iii)(D) of this Agreement, such Holder will
forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(xv) of
this Agreement, or until it is advised in writing (the "Advice") by the Issuer
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Issuer, each Holder will deliver to the Issuer
(at the Issuer's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
that the Issuer shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 of this
Agreement, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) of this Agreement to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) of this Agreement or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the Issuer's performance of or
compliance with this Agreement will be borne by the Issuer regardless of whether
a Registration Statement becomes effective, including without limitation: (i)
all registration and filing fees and expenses (including filings made with the
NASD (and, if applicable, the fees and expenses of any "qualified independent
underwriter" and its counsel that may be required by the rules and regulations
of the NASD)); (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing; (iv) all
fees and disbursements of counsel for the Issuer and, subject to Section 7(b)
below, the Holders of Transfer Restricted Securities; and (v) all fees and
disbursements of independent certified public accountants of the Issuer
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Issuer will, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by it.
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Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Notes shall pay all underwriting
discounts and commissions of any underwriters with respect to any Notes sold by
or on behalf of it.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Issuer will reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
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a majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless (i) the Initial
Purchaser, each Holder of Transfer Restricted Securities and each Participating
Broker Dealer, (ii) each person, if any, who controls any of the foregoing
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a "controlling person") and (iii) its agents, employees, officers and
directors and the agents, employees, officers and directors of any such
controlling person (collectively, the "Indemnified Persons") from and against
any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to reasonable attorneys' fees and any and all
reasonable expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all reasonable amounts paid in settlement of any claim or litigation) to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement or Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Issuer will not be liable in
any such case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Issuer by or on behalf of any Indemnified Person relating to
such Indemnified Person expressly for use therein. This indemnity agreement will
be in addition to any liability that the Issuer may otherwise have, including,
but not limited to, liability under this Agreement.
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If any action is brought against any Indemnified Persons or any such
person in respect of which indemnity may be sought against the Issuer pursuant
to the foregoing paragraph, such Indemnified Persons or such person shall
promptly notify the indemnifying party in writing of the institution of such
action and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses, provided, however, except to the
extent that the indemnifying party shall be materially prejudiced thereby
(through the forfeiture of substantive rights or defenses), that the omission to
so notify the indemnifying party shall not relieve the indemnifying party from
any liability which they may have to the Indemnified Persons or any such person
or otherwise. Such Indemnified Persons shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Persons unless the employment of such counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action or the indemnifying party shall not have
employed counsel to have charge of the defense of such action or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the indemnifying party and paid as incurred (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with appropriate local
counsel) in any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). The
indemnifying party shall not be liable for any settlement of any such claim or
action effected without its written consent but if settled with the written
consent of the indemnifying party, the indemnifying party agrees to indemnify
and hold harmless any Indemnified Persons and any such person from and against
any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, 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 proceeding.
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(b) In connection with any Registration Statement pursuant to which a
Holder of Transfer Restricted Securities offers or sells Transfer Restricted
Securities, such Holder agrees, severally and not jointly, to indemnify and hold
harmless the Issuer, its directors and officers and any person controlling the
Issuer within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, and each of their agents, employees, officers and directors
from and against any losses, liabilities, claims, damages and expenses
whatsoever (including but not limited to reasonable attorneys' fees and any and
all reasonable expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever and any and all reasonable amounts paid in settlement of any claim or
litigation) to which they or either of them may become subject under the Act,
the Exchange Act or otherwise insofar as such losses, liabilities, claims,
damages or expenses (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, in each case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information relating to such Holder furnished to the Issuer by such
Holder expressly for use in such Registration Statement.
If any action is brought against the Issuer or any such person in
respect of which indemnity may be sought against any Holder of Transfer
Restricted Securities pursuant to foregoing paragraph, the Issuer or such person
shall promptly notify such Holder in writing of the institution of such action
and such Holder shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, provided, however, except to the extent that
the indemnifying party shall be materially prejudiced thereby (through the
forfeiture of substantive rights or defenses), that the omission to so notify
such Holder shall not relieve such Holder from any liability which it may have
to the Issuer or any such person or otherwise. The Issuer or such person shall
have the right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Issuer or such person
unless the employment of such counsel shall have been authorized in writing by
such Holder of Transfer Restricted Securities in connection with the defense of
such action or such Holder shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to such Holder (in which
case such Holder shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties, but such Holder may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Holder), in any of which events such
fees and expenses shall be borne by such Holder and paid as incurred (it being
understood, however, that such Holder shall not be liable for the expenses of
more than one separate counsel in any one action or series of related actions in
the same jurisdiction representing the indemnified parties who are parties
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to such action). Anything in this paragraph to the contrary notwithstanding, any
Holder of Transfer Restricted Securities shall not be liable for any settlement
of any such claim or action effected without the written consent of such Holder
but if settled with the written consent of such Holder, such Holder agrees to
indemnify and hold harmless the Issuer and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnifying party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, 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 proceeding.
(c) In order to provide for contribution in circumstances in which the
indemnification provided for in paragraphs (a) and (b) of this Section 8 is for
any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Issuer and the Indemnified Parties shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action or
any claims asserted) to which the Issuer and the Indemnified Parties may be
subject, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuer, on the one hand, and the Indemnified Parties,
on the other hand, from the offering of the Old Notes or, (ii) if such
allocation 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 Issuer, on the one hand, and the
Indemnified Parties, on the other hand, in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Issuer, on the one hand, and the Indemnified Parties,
on the other hand, shall be deemed to be in the same proportion as the total
proceeds from the offering of Old Notes (net of discounts but before deducting
expenses) received by the Issuer as set forth in the table on the cover page of
the Offering Memorandum bear to the total proceeds received by such Holder with
respect to its sale of Transfer Restricted Securities or New Notes. The relative
fault of the Issuer, on the one hand, and the Indemnified Parties, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuer
or the Indemnified Parties and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
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The Issuer and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this paragraph (c) of this Section 8
were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to above.
Notwithstanding the provisions of paragraph (c) of this Section 8, (i) in no
case shall an Indemnified Party be required to contribute any amount in excess
of the amount by which the total received by such Indemnified Party with respect
to its sale of its Transfer Restricted Securities or New Notes, as the case may
be, exceeds the amount of any damages that such Indemnified Party has otherwise
been required to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this paragraph (c) of this Section 8, each
person, if any, who controls an Indemnified Party within the meaning of Section
15 of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Indemnified Party, and each person, if any, who controls
the Issuer within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Issuer, subject
to clauses (i) and (ii) of this paragraph. Any party entitled to contribution
will, promptly after receipt of notice of commencement of any Action against
such party in respect of which a claim for contribution may be made against
another party or parties under this paragraph 8(c), notify such party or parties
from whom contribution may be sought, but, except to the extent that the
indemnifying party shall be materially prejudiced thereby (through the
forfeiture of substantive rights and defenses), the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this paragraph (c)
or otherwise. No party shall be liable for contribution with respect to any
action or claim settled without its written consent; provided, however, that
such written consent was not unreasonably withheld.
SECTION 9. RULE 144A
The Issuer shall use its best efforts, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
of such securities and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Act in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration under this
Agreement 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 under this Agreement to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorneys, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
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SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Issuer.
SECTION 12. MISCELLANEOUS
(a) Remedies. Each Holder, in addition to being entitled to exercise
all rights provided in this Agreement, in the Indenture, the Purchase Agreement
or granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The Issuer
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any Action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuer will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions of this Agreement. The rights granted to
the Holders under this Agreement do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the securities of the
Issuer under any agreement in effect on the date of this Agreement.
(c) Adjustments Affecting the Notes. Without the written consent of the
Holders of a majority in aggregate principal amount of outstanding Transfer
Restricted Notes, the Issuer will not take any action, or permit any change to
occur, with respect to the Notes that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions of this Agreement may not be given unless the Issuer has obtained
the written consent of Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions of this Agreement that relates
exclusively to the rights of Holders whose securities are being sold or tendered
pursuant to a Registration Statement and that does not affect directly or
indirectly the rights of other Holders whose securities are not being sold or
tendered pursuant to such Registration Statement may be given by the Holders of
a majority of the outstanding principal amount of Transfer Restricted Securities
being so sold or tendered.
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(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivering, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Issuer, at:
Veritas DGC Inc.
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Attention: Chief Financial Officer
with a copy to:
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Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
(iii) if to the Initial Purchaser, at:
Warburg Dillon Read LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Finance Department
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
2300 First City Tower
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: J. ▇▇▇▇ ▇▇▇▇▇
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All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) when answered back, if telexed; (iv) when receipt acknowledged, if
telecopied; and (v) on the next business day, if timely delivered to an air
courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties to this Agreement in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(h) Captions. The captions included in this Agreement are included
solely for convenience of reference and are not to be considered a part of this
Agreement.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Submission to Jurisdiction. The Issuer irrevocably submits to the
nonexclusive jurisdiction of any State or Federal court sitting in New York over
any suit, action or proceeding arising out of or relating to this agreement. The
Issuer irrevocably waives, to the fullest extent permitted by law, any objection
it may now or thereafter have to the laying of venue of any such court and any
claim that any such suit, action or proceeding brought in such a court has been
brought in an inconvenient forum. The Issuer agrees that a final judgment in any
such suit, action or proceeding brought in any such court shall be conclusive
and binding upon the Issuer and may be enforced in any other courts to the
jurisdiction of which the Issuer is or may be subject, by suit upon such
judgment. The Issuer hereby appoints, without power of revocation, CT
Corporation System as its agent to accept and acknowledge on its behalf service
of any and all process which may be served in any suit, action or proceeding
arising out of or relating to this letter.
(k) Severability. In the event that any one or more of the provisions
contained in this Agreement, or the application of any such provision in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained in this Agreement shall not be affected or
impaired thereby.
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(l) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties to this Agreement in
respect of the subject matter contained in this Agreement. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to in this Agreement with respect to the registration rights granted
by the Issuer with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
VERITAS DGC INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
----------------------------------
WARBURG DILLON READ LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Executive Director
----------------------------------
By: /s/ [ILLEGIBLE]
-------------------------------------
Name: [Illegible]
-----------------------------------
Title: Associate Director
----------------------------------
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