EXHIBIT 4.03
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REGISTRATION RIGHTS AGREEMENT
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Dated as of October 28, 2003
between
GREY GLOBAL GROUP INC.
and
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
as Representative of the Initial Purchasers
5.0% Contingent Convertible Subordinated Debentures due 2033
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is dated
as of October 28, 2003, by and between GREY GLOBAL GROUP INC., a Delaware
corporation (the "COMPANY") and ▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as Representative
and on behalf of, the Initial Purchasers (the "INITIAL PURCHASERS") set forth in
Schedule I to the Purchase Agreement (as defined below).
This Agreement is entered into in connection with the Purchase
Agreement, dated as of October 22, 2003, among the Company and the Initial
Purchasers (the "PURCHASE AGREEMENT") relating to the sale by the Company to the
Initial Purchasers of $125,000,000 aggregate principal amount 5.0% Contingent
Convertible Subordinated Debentures due 2033 (the "FIRM DEBENTURES"), plus up to
an additional $25,000,000 aggregate principal amount of the same that the
Initial Purchasers may elect to purchase pursuant to the terms of the Purchase
Agreement (the "ADDITIONAL DEBENTURES" and, together with the Firm Debentures,
the "DEBENTURES"), which are convertible, under certain circumstances, into
shares of common stock, par value $0.01 per share, of the Company (such shares,
the "UNDERLYING SHARES"). The Debentures are being issued pursuant to an
indenture dated as of the date hereof (the "INDENTURE") between the Company and
American Stock Transfer & Trust Company, as Trustee (the "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 any
subsequent holder of holders of the Debentures or the Underlying Shares as
provided herein. The execution and delivery of this Agreement is a condition to
the Initial Purchasers' obligation to purchase the Firm Debentures under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Debentures: See the introductory paragraphs to
this Agreement.
Additional Interest: See Section 3(a).
Advice: See Section 4.
Amount of Registrable Securities: (a) With respect to
Debentures constituting Registrable Securities, the aggregate principal amount
of all such Debentures outstanding, (b) with respect to Underlying Shares
constituting Registrable Securities, the aggregate number of such Underlying
Shares outstanding multiplied by the Conversion Price (as defined in the
Indenture relating to the Debentures upon the conversion of
which such Underlying Shares were issued) in effect at the time of computing the
Amount of Registrable Securities or, if no such Debentures are then outstanding,
the last Conversion Price that was in effect under such Indenture when any such
Debentures were last outstanding, and (c) with respect to combinations thereof,
the sum of (a) and (b) for the relevant Registrable Securities.
Blackout Period: See Section 3(a).
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Company: See the introductory paragraphs to this Agreement.
Damages Payment Date: See Section 3(b).
Debentures: See the introductory paragraphs to this
Agreement.
DTC: See Section 4(a).
Effectiveness Date: The 180th day after the Issue Date.
Effectiveness Period: See Section 2(a).
Event Date: See Section 3(b).
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Filing Date: The 90th day after the Issue Date.
Holder: Any record holder of Registrable Securities.
Indemnified Person: See Section 6.
Indemnifying Person: See Section 6.
Indenture: See the introductory paragraphs to this Agreement.
Initial Purchasers: See the introductory paragraphs to this
Agreement.
Initial Shelf Registration: See Section 2(a).
Inspectors: See Section 4(n).
Issue Date: The date hereof.
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Notice and Questionnaire: A written notice delivered to the
Company containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Appendix A to the
Offering Memorandum of the Company relating to the Debentures.
Person: An individual, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, 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, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Purchase Agreement: See the introductory paragraphs to this
Agreement.
Records: See Section 4(n).
Registrable Securities: All Debentures and Underlying Shares
upon original issuance thereof and at all times subsequent thereto until the
earliest to occur of (i) a Registration Statement covering such Debentures and
Underlying Shares having been declared effective by the SEC and such Debentures
and Underlying Shares have been disposed of in accordance with such effective
Registration Statement, (ii) such Debentures and Underlying shares having been
sold in compliance with Rule 144 and (iii) such Debentures and any Underlying
Shares cease to be outstanding.
Registration Default: See Section 3(a).
Registration Statement: Any registration statement of the
Company filed with the SEC that covers any of the Registrable Securities
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 documents 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.
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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 Securities and Exchange Commission.
Securities: The Debentures and the Underlying Shares, until
the Debentures have all been converted into Underlying Shares, in which case
Securities shall mean the Underlying Shares.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Selling Holder: On any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
Shelf Registration: See Section 2(b).
Shelf Registration Statement: See Section 2(b).
Subsequent Shelf Registration: See Section 2(b).
TIA: The Trust Indenture Act of 1939, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Trustee: See the introductory paragraphs to this Agreement.
Underlying Shares: See the introductory paragraphs to this
Agreement.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Registration
(a) The Company shall prepare and file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Securities (the "INITIAL SHELF
REGISTRATION"); provided, that, with respect to any particular Registrable
Security, the Holder thereof shall have provided all information regarding such
Holder and the distribution of such Registrable Security as may be required to
be in a registration statement filed under the Securities Act. The Company shall
file with the SEC the Initial Shelf Registration on or prior to the Filing Date.
The Initial Shelf Registration shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in the manner or manners reasonably designated by them (excluding
Underwritten Offerings).
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The Company shall not permit any securities other than the Registrable
Securities to be included in the Initial Shelf Registration or any Subsequent
Shelf Registration (as defined below), other than as may be required to comply
with the registration rights granted to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ in the Registration
Rights Agreement, dated as of June 5, 1986, between Grey Advertising Inc. and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇. The Company shall use its reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date which is two
years from the Issue Date (other than during a Blackout Period) (as defined
below) (the "EFFECTIVENESS PERIOD"), or such shorter period ending when (i) all
the Registrable Securities covered by the Initial Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial Shelf
Registration, (ii) the date on which all the Registrable Securities (x) have
been resold pursuant to Rule 144 or (y) cease to be outstanding or (iii) a
Subsequent Shelf Registration covering all of the Registrable Securities has
been declared effective under the Securities Act. Holders who elect to sell
Securities pursuant to a Shelf Registration Statement will be required to be
named as a selling security holder; will be required to deliver a prospectus to
purchasers; will be subject to the civil liability provisions under the
Securities Act in connection with any sales; and will be bound by the applicable
provisions of this Agreement, including the indemnification obligations herein.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below) ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the Registrable Securities registered
thereunder), the Company shall use its reasonable best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 45 days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities covered by the Initial Shelf Registration Statement and not
theretofore sold (a "SUBSEQUENT SHELF REGISTRATION"). If a Subsequent Shelf
Registration is filed, the Company shall use its reasonable best efforts to
cause the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Registration Statement
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "SHELF REGISTRATION" means the
Initial Shelf Registration and any Subsequent Shelf Registration and the term
"SHELF REGISTRATION STATEMENT" means any Registration Statement filed in
connection with a Shelf Registration.
(c) Supplements and Amendments. The Company shall
promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in Amount of Registrable Securities
covered by such Registration Statement.
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3. Additional Interest
(a) The Company and the Initial Purchasers agree that the
Holders of Registrable Securities will suffer damages if the Company fails to
fulfill certain of its obligations under Section 2 hereof and that it would not
be feasible to ascertain the extent of such damages with precision. Accordingly,
the Company agrees to pay additional interest on the Registrable Securities
("ADDITIONAL INTEREST") under the circumstances and to the extent set forth
below. Additional Interest shall accrue: (i) if the Initial Shelf Registration
Statement is not declared effective by the SEC on or prior to the Effectiveness
Date or (ii) if the effectiveness of the Initial Shelf Registration Statement
for resales thereunder is suspended at any time during the Effectiveness Period
(other than during a Blackout Period) (each a "REGISTRATION DEFAULT"). In each
case, Additional Interest will be payable on the Registrable Securities included
(or that would have been included but for the Company's failure to comply with
Section 4(a) hereof and provided the Holder thereof did not fail to comply with
the provisions of Section 4(o) hereof) in such Registration Statement over and
above the stated interest rate of the Debentures at a rate of 0.25% per annum on
the Amount of Registrable Securities, commencing on (x) the 181st day after the
Issue Date in the case of clause (i) above and (y) the day such Initial Shelf
Registration is suspended in excess of the Blackout Period in the case of clause
(ii) above; provided, however, that (1) upon the effectiveness of the Shelf
Registration Statement as required hereunder (in the case of clause (a)(i) of
this Section 3) or (2) upon the effectiveness of the Shelf Registration
Statement which has been suspended (in the case of (a)(ii) of this Section 3),
Additional Interest on the Registrable Securities as a result of such clause,
shall cease to accrue; provided further, however, that Additional Interest on
the Registrable Securities may accrue under only one of the foregoing clauses
(a)(i) and (a)(ii) of this Section 3 at any one time. It is understood and
agreed that, notwithstanding any provision to the contrary, (1) no Additional
Interest shall accrue on any Registrable Securities that are then covered by an
effective Shelf Registration Statement and (2) the right to receive Additional
Interest shall be the sole and exclusive remedy to the Holders of the
Registrable Securities for breach by the Company of its registration
obligations.
As used herein, the term "BLACKOUT PERIOD" means a period of
time not to exceed 45 days in any 90-day period, and not to exceed an aggregate
of 120 days in any 365-day period, during which the Company suspends the
effectiveness of the Initial Shelf Registration Statement and the use of the
Prospectus included in the Initial Shelf Registration Statement referred to
above (1) under certain circumstances relating to pending corporate
developments, including but not limited to acquisitions, divestitures,
dispositions and financings, public filings with the SEC and similar events or
(2) the occurrence of any other event which would require disclosure of material
non-public information by the Company as to which the Company has a bona fide
business purpose for preserving confidentiality; provided, that, so long as
Registrable Securities are outstanding the Company shall provide the Trustee
with prompt written notice of the commencement of and prompt written notice of
the termination of each such Blackout Period; provided further, however, that
the Company need not specify the nature of the event giving rise to a Blackout
Period in any such notice to the Trustee.
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(b) The Company shall notify the Trustee within five
Business Days after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "EVENT DATE"). The
Additional Interest due shall be payable in cash semi-annually on each April 15
and October 15 (each a "DAMAGES PAYMENT DATE"), commencing with the first such
date occurring after any such Additional Interest begins to accrue, to the
record Holder of Registrable Securities entitled to receive the regular interest
on such Damages Payment Date, with respect to Debentures that are Registrable
Securities, and to Persons that are registered Holders on April 1 and October 1
immediately prior to a Damages Payment Date with respect to Underlying Shares
that are Registrable Securities. The amount of Additional Interest for
Registrable Securities will be determined by multiplying the rate of Additional
Interest by the Amount of Registrable Securities outstanding on the Damages
Payment Date following a Registration Default in the case of the first such
payment of Additional Interest with respect to a Registration Default and
thereafter at the next succeeding Damages Payment Date until the cure of such
Registration Default.
4. Registration Procedures
In connection with the registration of any Registrable
Securities pursuant to Section 2 hereof, the Company shall effect such
registrations to permit the sale of such Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall:
(a) (i) Promptly upon request from any Holder of
Registrable Securities, the Company will provide a form of Notice and
Questionnaire, which must be completed and delivered by such Holder to the
Company at least five Business Days before any intended distribution of
Registrable Securities under the Shelf Registration Statement. To be named as a
selling security holder in the Shelf Registration Statement when it first
becomes effective, Holders must complete and deliver the Notice and
Questionnaire in substantially the form of Appendix A to the Offering Memorandum
dated October 22, 2003 with respect to the initial offering of the Securities
before the effectiveness of the Shelf Registration Statement. If the Company
receives from a Holder of Registrable Securities a completed Notice and
Questionnaire, together with such other information as the Company may
reasonably request, after the effectiveness of the Shelf Registration Statement,
the Company will file an amendment to the Shelf Registration Statement, or a
supplement to the related Prospectus, to permit the Holder to deliver a
Prospectus to purchasers of Registrable Securities. Any Holder that does not
complete and deliver a Notice and Questionnaire or provide such other
information will not be named as a selling security holder in the Prospectus and
will not be permitted to sell any Registrable Securities under the applicable
Shelf Registration Statement.
(ii) Prepare and file with the SEC on or prior to
the Filing Date, a Registration Statement as prescribed by
Section 2 hereof, and to use its reasonable best efforts to
cause such Registration Statement to become effective and
remain effective as provided herein, provided that, before
filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall upon
written request from any
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registered Holder of Registrable Securities (which in the case
of Registrable Securities in the form of global certificates
shall be The Depository Trust Company ("DTC")) to be covered
by such Registration Statement, furnish to and afford such
Holder 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. Before filing any Registration Statement
or Prospectus or any amendments or supplements thereto the
Company will consider any reasonable objections of the Holders
of a majority in Registrable Securities covered by such
Registration Statement or their counsel, if any.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement, as the case may
be, as may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period (other than during a Blackout Period);
cause the related Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act, the Exchange Act and the rules
and regulations of the SEC promulgated thereunder applicable to it with respect
to the disposition of all Registrable Securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented.
(c) Notify the Selling Holders of Registrable Securities
named in the Shelf Registration Statement promptly (but in any event within five
Business Days), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when the
same has become effective under the Securities Act (including in such notice a
written statement that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment), (ii)
of the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
Prospectus or the initiation of any proceedings for that purpose, (iii) of the
receipt by the Company of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Registrable Securities for offer or sale in any jurisdiction, or the
initiation or threatening in writing of any proceeding for such purpose, (iv) of
the happening of any event 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 such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and (v) of the Company's
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determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) Use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, and, if any such order is issued, to
use its reasonable best efforts to obtain the withdrawal of any such order at
the earliest possible moment.
(e) Deliver to each Selling Holder of Registrable
Securities, without charge, 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 4, the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the Selling Holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities covered by
such Prospectus and any amendment or supplement thereto.
(f) Cause the Company's counsel to perform Blue Sky
investigations and file registrations and qualifications required to be filed in
connection with the registration or qualification (or exemption therefrom) of
such Registrable Securities; 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 reasonable acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the applicable Registration Statement,
provided that the Company shall not be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to taxation
in excess of a nominal dollar amount in any such jurisdiction.
(g) Cooperate with the Selling Holders of Registrable
Securities to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for deposit with
DTC; and enable such Registrable Securities to be registered in such names as
Selling Holders may request.
(h) Use its reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other United States governmental agencies or
authorities of the United States as may be necessary to enable the Selling
Holders to consummate the disposition of such Registrable Securities, except as
may be required solely as a consequence of the nature of such Selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals.
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(i) Upon the occurrence of any event contemplated by
paragraph 4(c)(iv) or 4(c)(v) above, as promptly as practicable prepare and
(subject to Section 4(a) above) file with the SEC, solely at the expense of the
Company, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Securities
being sold thereunder, any such Prospectus will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(j) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the Trustee with
printed certificates for the Registrable Securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for the Registrable Securities.
(k) Cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement relating to
the Registrable Securities; and in connection therewith, cooperate with the
Trustee and the Selling Holders of the Registrable Securities to effect such
changes to the Indenture as may be required for the Indenture to be so qualified
in accordance with the terms of the TIA; and execute, and use its reasonable
best efforts to cause the Trustee to execute, all documents as may be required
to effect such changes, and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner.
(l) During the Effectiveness Period, comply in all
material respects with all applicable rules and regulations of the SEC and make
generally available to its security-holders earning statements satisfying the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or
any similar rule promulgated under the Securities Act) no later than 90 days
after the end of any 12-month period commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Shelf Registration
Statement.
(m) Use its reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable Securities covered
by a Registration Statement contemplated hereby.
(n) During the Effectiveness Period, make available at
reasonable times for inspection by representatives of the Selling Holders of
such Registrable Securities designated in writing by Holders of a majority in
Amount of Registrable Securities to be included in such Registration Statement
and any attorney, accountant or other agent retained by such Selling Holders
(collectively, the "INSPECTORS"), at the offices where normally kept, during
reasonable business hours at such time or times as shall be mutually convenient
for the Company and the Inspectors as a group, all 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,
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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; provided, however, that the Company shall have no
obligation to provide any such information prior to the execution by the party
receiving such information of a confidentiality agreement in a form reasonably
acceptable to the Company. The Inspectors shall treat all records as
confidential and such records shall not be disclosed by any Inspector unless (i)
the disclosure of such Records is necessary to avoid or correct a material
misstatement or material omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such information is, in the
opinion of counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding directly involving or potentially
involving such Inspector and arising out of, based upon, relating to, or
involving this Agreement or any transactions contemplated hereby or arising
hereunder, (iv) the information in such Records has been made generally
available to the public other than through the acts of such Inspector; provided,
however, that prior notice shall be provided as soon as practicable to the
Company of the potential disclosure of any information by such Inspector
pursuant to clause (ii) or (iii) of this sentence to permit the Company to
obtain a protective order (or waive the provisions of this paragraph (n)) and
that such Inspector shall take such actions as are reasonably necessary to
protect the confidentiality of such information (if practicable) to the extent
such action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of any Holder or Inspector or (v) the
information in such Records has been made generally available to the public
other than as a result of a breach of this Agreement.
(o) Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder shall be entitled to sell any of such Registrable
Securities pursuant to a Registration Statement or to receive a Prospectus
relating thereto, unless such Holder has furnished the Company with a Notice and
Questionnaire as required pursuant to Section 4(a) hereof (including the
information required to be included in such Notice and Questionnaire) and the
information set forth in the next sentence. Each Selling Holder agrees promptly
to furnish to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Selling Holder
not misleading and any other information regarding such Selling Holder and the
distribution of such Registrable Securities as the Company may from time to time
reasonably request. Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the information
relating to such Holder and its plan of distribution is as set forth in the
Prospectus delivered by such Holder in connection with such disposition, that
such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact relating to or provided by such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact relating to or provided by such Holder or its
plan of distribution necessary to make the statement in such Prospectus, in the
light of the circumstances under which they were made, not misleading.
The Company may require each Selling Holder of Registrable Securities
to furnish to the Company such information regarding such Selling Holder and the
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distribution of such Registrable Securities as the Company may, from time to
time, reasonably request. The Company may exclude from such registration the
Registrable Securities of any Selling Holder who fails to furnish such
information within 20 Business Days after receiving such request. Each Selling
Holder as to which any Shelf Registration is being effected is deemed to agree
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 Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice of a Blackout Period in
accordance with Section 3(a) hereof or upon the happening of any event of the
kind described in Section 4(c)(ii), 4(c)(iii), 4(c)(iv), or 4(c)(v), such Holder
will forthwith discontinue disposition of such Registrable Securities covered by
such Registration Statement or Prospectus until such holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 4(e),
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. Each Holder agrees to keep any such notice
confidential. In the event the Company shall give any such notice, the
Effectiveness Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Registrable Securities covered by such Registration
Statement shall be given (x) the copies of the supplemented or amended
Prospectus contemplated by Section 4(e) or (y) the Advice.
5. Registration Expenses
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 a Shelf Registration is filed or becomes effective, including,
without limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses of compliance with state securities or Blue Sky
laws (including, without limitation, reasonable fees and disbursements of one
counsel in connection with Blue Sky qualifications of the Registrable Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions in the United States as provided
in Section 4(f)), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with DTC and of printing prospectuses if the printing of
prospectuses is requested by the Holders of a majority in Amount of Registrable
Securities included in any Registration Statement), (iii) messenger, telephone
and delivery expenses, (iv) fees and disbursements of counsel for the Company,
(v) Securities Act liability insurance, if the Company desires such insurance,
(vi) fees and expenses of all other Persons retained by the Company, (vii)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (viii) the expense of any annual audit, (ix) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, (x) the expenses relating
to printing, word processing and distributing all Registration Statements and
any other documents necessary in order to comply with this Agreement
12
and (xi) fees and expenses of the Trustee. Notwithstanding anything in this
Agreement to the contrary, each Holder shall pay all brokerage commissions with
respect to any Registrable Securities sold by it and, except as set forth in
clause (i) of this Section 5, the Company shall not be responsible for the fees
and expenses of any counsel, accountant or advisor for the Holders.
6. Indemnification
(a) The Company agrees to indemnify and hold harmless
each Initial Purchaser and each Holder, their respective affiliates, directors
and officers and each Person, if any, who controls such Initial Purchaser or any
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages and
liabilities (including, without limitation, legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted, as such fees and expenses are incurred), joint or several, that arise
out of, or are based upon, any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or any Prospectus or any
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, except
insofar as such losses, claims, damages or liabilities arise out of, or are
based upon, any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with any information relating
to such Initial Purchaser or any such Holder furnished to the Company in writing
through ▇.▇. ▇▇▇▇▇▇ Securities Inc. or any such Selling Holder expressly for use
therein. Notwithstanding anything herein to the contrary, in connection with the
sale of Registrable Securities pursuant to a Shelf Registration Statement, the
Company will not be liable to any Holder with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus of a Registration Statement that is corrected in a
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) relating to such securities if the Person
asserting any such claim, loss, damage or liability purchased such securities
and was not sent or given a copy of the Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) if
delivery of such Prospectus by such Holder was required under the Securities
Act, provided the Company delivered in sufficient quantity such Prospectus (as
amended or supplemented if any Issuer shall have furnished any amendments or
supplements thereto) to such Holder sufficiently in advance of the written
confirmation of the sale of the securities to such Person asserting such claim,
loss, damage or liability and any such claims, losses, damages, or liabilities
result from (or are alleged to result from) the fact that a copy of the
Prospectus (as amended or supplemented if any Issuer shall have furnished any
amendments or supplements thereto) was not delivered to such Person at or prior
to the written confirmation of the sale of the securities to such Person.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, each Initial Purchaser and each other
Selling Holder, their respective affiliates, the directors of the Company, each
officer of the Company who signed the Registration Statement and each Person, if
any, who controls the Company,
13
such Initial Purchaser and such other Selling Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the indemnity set forth in paragraph (a) above, but only with respect
to any losses, claims, damages or liabilities that arise out of, or are based
upon, any untrue statement or omission or alleged untrue statement or omission
made in reliance upon and in conformity with any information relating to such
Holder furnished to the Company in writing through any such Holder expressly for
use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnification may be sought
pursuant to either paragraph (a) or (b) above, such Person (the "INDEMNIFIED
PERSON") shall promptly notify the Person against whom such indemnification may
be sought (the "INDEMNIFYING PERSON") in writing; provided that the failure to
notify the Indemnifying Person shall not relieve it from any liability that it
may have under this Section 6 except to the extent that the Indemnifying Person
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 Person shall not relieve it from any liability that it may have to
an Indemnified Person otherwise than under this Section 6. If any such
proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person,
upon request of the Indemnified Person, shall retain counsel reasonably
satisfactory to the Indemnified Person to represent the Indemnified Person and
any others entitled to indemnification pursuant to this Section 6 that the
Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding. In any
such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person unless (i) the Indemnifying Person and the Indemnified
Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person
has failed within a reasonable time to retain counsel reasonably satisfactory to
the Indemnified Person; (iii) the Indemnified Person shall have reasonably
concluded that there may be legal defenses available to it that are different
from or in addition to those available to the Indemnifying Person; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related
proceeding in the same jurisdiction, be liable for the fees and expenses of more
than one separate firm (in addition to any local counsel) for all Indemnified
Persons. Any such separate firm (x) for the Initial Purchaser, its affiliates,
directors and officers and any control Persons of the Initial Purchaser shall be
designated in writing by the Initial Purchaser, (y) for any Holders, their
affiliates, directors and officers and any control Persons of any such Holders
shall be designated in writing by the majority in Amount of Registrable
Securities and (z) in all other cases shall be designated in writing by the
Company. The Indemnifying Person shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the Indemnifying
Person agrees to indemnify each Indemnified Person from and against any loss or
14
liability by reason of such settlement or judgment. No Indemnifying Person
shall, without the written consent of the Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party and indemnification could have
been sought hereunder by such Indemnified Person, unless such settlement (A)
includes an unconditional release of such Indemnified Person, in form and
substance reasonably satisfactory to such Indemnified Person, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to or any admission of fault, culpability or a failure
to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in paragraphs (a)
and (b) above is unavailable to an Indemnified Person or insufficient in respect
of any losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Indemnifying Person, on the one hand, and by the
Indemnified Person, on the other hand, pursuant to the Purchase Agreement or
from the offering of the Registrable Securities pursuant to any Shelf
Registration or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Indemnifying Person on the one hand and the Indemnified Person on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Company, the Initial Purchasers and the Holders
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph
(d) above shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified
Person in connection with any such action or claim. Notwithstanding the
provisions of this Section 6, in no event shall a Holder be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Holder from the offering or sale of the Registrable Securities pursuant
to the Shelf Registration Statement exceeds the amount of any damages that such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
15
(f) The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies that may otherwise be
available to any Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained
in this Section 6 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Initial Purchaser or any Holder, their respective affiliates or
any Person controlling any Initial Purchaser or any Holder, or by or on behalf
of the Company, its affiliates or the officers or directors of or any Person
controlling the Company, (iii) acceptance of any of the Registrable Securities
and (iv) any sale of Registrable Securities pursuant to a Shelf Registration
Statement.
7. Rule 144 and Rule 144A
The Company covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act in a timely
manner and, if at any time the Company is not required to file such reports, it
will, upon the request of any Holder of Registrable Securities, make publicly
available other information so long as necessary to permit sales pursuant to
Rule 144 and Rule 144A under the Securities Act. The Company further covenants
it will take such further action as any Holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule 144 and Rule
144A under the Securities Act, as such rules may be amended from time to time,
or (b) any similar rule or regulation hereafter adopted by the SEC.
8. Underwritten Registrations
No Holder of Registrable Securities may participate in any
Underwritten Registration hereunder.
9. Miscellaneous
(a) No Inconsistent Agreements. The Company has not, as
of the date hereof, entered and shall not, after the date of this Agreement,
enter into any agreement with respect to any of its securities that restricts
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. After the date of this
Agreement, the Company will not enter into any agreement with respect to any of
its securities which will grant to any Person piggy-back rights with respect to
a Registration Statement (as defined herein).
(b) Adjustments Affecting Registrable Securities. The
Company shall not, directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the ability of the
Holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
16
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of the Company and the Holders of not less than the
majority in Amount of Registrable Securities; provided, however, that Section 6
and this Section 9(c) may not be amended, modified or supplemented without the
prior written consent of the Company and each Holder (including, in the case of
an amendment, modification or supplement to Section 6, any Person who was a
Holder of Registrable Securities disposed of pursuant to any Registration
Statement). Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority in Amount of
Registrable Securities being sold by such Holders pursuant to such Registration
Statement.
(d) Notices. All notices and other communications
(including without limitation any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile,
if provided:
(i) if to a Holder of Registrable Securities, at
the most current address of such Holder set forth on the
records of the registrar under the Indenture, in the case of
Holders of Debentures, and the stock ledger of the Company, in
the case of Holders of Underlying Shares, unless, in either
such case, any Holder shall have provided notice information
in a Notice and Questionnaire or any amendment thereto, in
which case such information shall control; and
(ii) if to the Company, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (facsimile no.: (▇▇▇) ▇▇▇-▇▇▇▇),
Attention: Corporate Secretary, with a copy to Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, (facsimile no.: [ ]), Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
and
(iii) if to the Initial Purchasers, ▇.▇. ▇▇▇▇▇▇
Securities Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
Attention: Syndicate Department.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when the Person
giving such notice or communication receives facsimile confirmation, if sent by
facsimile during normal business hours, and otherwise on the next Business Day
during normal business hours.
17
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the trustee
under the Indenture at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties hereto, including the Holders; provided, that, with respect to the
indemnity and contribution agreements in Section 6, each Holder of Registrable
Securities subsequent to the Initial Purchaser shall be bound by the terms
thereof if such Holder elects to include Registrable Securities in a Shelf
Registration; 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 Registrable Securities.
(f) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED
TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement, and is intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein.
18
(k) Securities Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage in Amount
of Registrable Securities is required hereunder, Registrable Securities held by
the Company or any of 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.
(l) Third Party Beneficiaries. Holders of Registrable
Securities are in-tended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
19
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
GREY GLOBAL GROUP INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice Chairman, Chief Financial,
Officer, Secretary and
Treasurer
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., on behalf of
the Initial Purchasers
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: VP