Exhibit 4.2
Execution Copy
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of
August 13, 2001 by and among ▇▇▇▇▇ ▇▇▇▇▇ Management, a Massachusetts business
trust (the "Company"), ▇▇▇▇▇ ▇▇▇▇▇ Corp., a Maryland corporation (the "Parent"),
and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the "Initial Purchaser")
pursuant to the Purchase Agreement, dated as of August 7, 2001 (the "Purchase
Agreement"), among the Company, the Parent and the Initial Purchaser. In order
to induce the Initial Purchaser to enter into the Purchase Agreement, the Parent
has agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Parent and the Company agree with the Initial Purchaser, (i) for
the benefit of the Initial Purchaser and (ii) for the benefit of the beneficial
owners (including the Initial Purchaser) from time to time of the Securities (as
defined herein), and the beneficial owners from time to time of the Exchangeable
Common Stock (as defined herein) delivered upon exchange of the Securities (each
of the foregoing a "Holder" and together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" means, with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Applicable Exchange Price" means, as of any date of determination, the
Applicable Principal Amount per $1,000 principal amount at maturity of
Securities as of such date of determination divided by the Exchange Rate in
effect as of such date of determination or, if no Securities are then
outstanding, the Exchange Rate that would be in effect were Securities then
outstanding.
"Applicable Principal Amount" means, as of any date of determination,
(1) with respect to each $1,000 principal amount at maturity of Securities, the
sum of the initial issue price of such Securities ($638.70) plus accrued
original issue discount with respect to such Securities through such date of
determination, (2) if the Securities have been converted to semiannual coupon
notes upon a Tax Event, the Restated Principal Amount (as defined in the
Indenture) with respect to such Securities or, (3) if no Securities are then
outstanding, such sum calculated as if such Securities were then outstanding.
"Business Dav" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
"Common Stock" means any shares of non-voting common stock, par value
$.0078125 per share, of the Parent and any other shares of common stock as may
constitute "Common Stock" for purposes of the Indenture, including the
Exchangeable Common Stock.
"Damages Accrual Period" has the meaning specified in Section 2(e)
hereof.
"Damages Pavment Date" means each August 13 and February 13 in the case
of Securities and the Exchangeable Common Stock.
"Deferral Notice" has the meaning specified in Section 3(i) hereof.
"Deferral Period" has the meaning specified in Section 3(i) hereof.
"Effectiveness Deadline Date" has the meaning specified in Section 2(a)
hereof.
"Effectiveness Period" means the period that will terminate upon the
earlier of (A) when all the shares of Exchangeable Common Stock covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement and (B) when, in the written opinion of counsel to the Parent, (i) all
outstanding shares of Exchangeable Common Stock that were delivered upon
exchange of Securities and that are held by persons that are not Affiliates of
the Parent may be resold at any time, and (ii) all shares of Exchangeable Common
Stock that may be delivered in the future upon exchange of outstanding
Securities to persons that are not Affiliates of the Parent may be resold
immediately upon delivery, in each case without registration under the
Securities Act pursuant to Rule 144(k) under the Securities Act or any successor
provision thereto.
"Event" has the meaning specified in Section 2(e) hereof.
"Event Termination Date" has the meaning specified in Section 2(e)
hereof.
"Event Date" has the meaning specified in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Exchange Rate" has the meaning assigned to that term in the Indenture.
"Exchangeable Common Stock" means the Common Stock into which the
Securities are exchangeable or delivered upon any such exchange.
"Filing Deadline Date" has the meaning specified in Section 2(a)
hereof.
"Holder" has the meaning specified in the second paragraph of this
Agreement.
"Indenture" means the Indenture dated as of the date hereof between the
Company and the Trustee, pursuant to which the Securities are being issued.
"Initial Purchaser" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.
"Initial Shelf Registration Statement" has the meaning specified in
Section 2(a) hereof.
"Issue Date" means August 13, 2001.
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"Liquidated Damages Amount" has the meaning specified in Section 2(e)
hereof.
"Losses" has the meaning specified in Section 6 hereof.
"Material Event" has the meaning specified in Section 3(i) hereof.
"Notice and Questionnaire" means a written notice delivered to the
Company and the Parent containing substantially the information called for by
the Selling Securityholder Notice and Questionnaire attached as Annex A to the
Offering Memorandum of the Company dated August 7, 2001 relating to the
Securities.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Parent and the Company on or prior to such date.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus supplement with respect
to terms of the offering of any portion of the Registrable Securities covered by
a Shelf Registration Statement), as amended or supplemented by any amendment or
prospectus supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such Prospectus.
"Purchase Agreement" has the meaning specified in the first paragraph
of this Agreement.
"Record Holder" means, with respect to any Damages Payment Date
relating to any Securities or Exchangeable Common Stock as to which any
Liquidated Damages Amount has accrued. the registered holder of such Securities
or Exchangeable Common Stock, as the case may be, on the July 29 or January 29,
as the case may be, immediately prior to the next succeeding Damages Payment
Date or, if all Events giving rise to the Liquidated Damages Amount payable on
such Damage Payment Date have been cured and no such Event is continuing on such
date, as of the date on which the last such Event was cured.
"Registrable Securities" means the Exchangeable Common Stock, until
such securities have been converted or exchanged, and, at all times subsequent
to any such conversion or exchange, any securities into or for which such
securities have been converted or exchanged, and any security issued with
respect thereto upon any stock dividend, split, merger or similar event until,
in the case of any such security, the earliest of (i) its effective registration
under the Securities Act and resale in accordance with the Registration
Statement covering it, (ii) expiration of the holding period that is applicable
thereto under Rule 144(k) were it not held by an Affiliate of the Parent or
(iii) its sale to the public pursuant to Rule 144.
"Registration Expenses" has the meaning specified in Section 5 hereof.
"Registration Statement" means any registration statement of the Parent
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 materials incorporated by reference or explicitly deemed to be incorporated
by reference in such registration statement.
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"Restricted Securities" has the meaning assigned to that term in Rule
144.
"Rule 144" means Rule 144 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.
"Rule 144A" means Rule 144A 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" means the U.S. Securities and Exchange Commission and any
successor agency.
"Securities" means the Liquid Yield Option Notes due 2031 of the
Company to be purchased pursuant to the Purchase Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning specified in Section
2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning specified in
Section 2(b) hereof.
"Tax Event" has the meaning specified in the Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means The Chase Manhattan Bank (or any successor entity), the
Trustee under the Indenture.
Section 2. Shelf Registration. (a) The Parent shall prepare and file or
cause to be prepared and filed with the SEC on a date no later than ninety (90)
days after the Issue Date (the "Filing Deadline Date"), a Registration Statement
for an offering to be made on a delayed or continuous basis pursuant to Rule 415
of the Securities Act (a "Shelf Registration Statement") registering the resale
from time to time by Holders thereof of all of the Registrable Securities (the
"Initial Shelf Registration Statement"). The Initial Shelf Registration
Statement shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in
accordance with the methods of distribution reasonably elected by the Holders
and set forth in the Initial Shelf Registration Statement; provided, that in no
event will such method(s) of distribution take the form of an underwritten
offering of the Registrable Securities without the prior written agreement of
the Parent. The Parent shall use reasonable efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act by the
date (the "Effectiveness Deadline Date") that is one hundred and eighty (180)
days after the Issue Date, and to keep the Initial Shelf Registration Statement
(or any Subsequent Shelf Registration Statement) continuously effective under
the Securities Act (subject to Section 3(i)) until the expiration of the
Effectiveness Period; provided, however, that no Holder shall be entitled to
have the Registrable Securities held by it covered by such Shelf Registration
Statement unless such Holder shall have provided a Notice and Questionnaire in
accordance with Section 2(d) and is in compliance with Section 4. None of the
Parent's security
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holders (other than the Holders of Registrable Securities) shall have the right
to include any of the Parent's securities in the Shelf Registration Statement,
except that the Parent may include in the Shelf Registration Statement the
Common Stock registrable pursuant to the registration rights agreement to be
entered into in connection with the purchase by ▇▇▇▇▇ ▇▇▇▇▇ Acquisitions of 80%
of the equity of Fox Asset Management, Inc.
(b) If the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time during
the Effectiveness Period (other than as provided in Section 3(i) or because all
Registrable Securities registered thereunder shall have been resold pursuant
thereto or shall have otherwise ceased to be Registrable Securities), the Parent
shall use reasonable efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within thirty (30)
days of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order suspending
the effectiveness thereof, or file an additional Shelf Registration Statement
covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Parent shall use
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is reasonably practicable after such filing or,
if filed during a Deferral Period, after the expiration of such Deferral Period,
and to keep such Registration Statement (or Subsequent Shelf Registration
Statement) continuously effective (subject to Section 3(i)) until the end of the
Effectiveness Period.
(c) The Parent shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used by the Parent for such Shelf Registration Statement,
if required by the Securities Act or, to the extent to which the Parent does not
reasonably object, as reasonably requested by the Initial Purchaser or by the
Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to a Shelf Registration Statement
and related Prospectus, it will do so only in accordance with this Section 2(d),
Section 3(i) and Section 4. Each Holder of Registrable Securities wishing to
sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus agrees to deliver a Notice and Questionnaire to the Parent at
least five (5) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration Statement. From and after the date the
Initial Shelf Registration Statement is declared effective, the Parent shall, as
promptly as is practicable after the date a Notice and Questionnaire is
delivered, (i) if required by applicable law, file with the SEC a post-effective
amendment to the Shelf Registration Statement or prepare and, if required by
applicable law, file a supplement to the related Prospectus or a supplement or
amendment to any document incorporated therein by reference or file any other
required document so that the Holder delivering such Notice and Questionnaire is
named as a selling security holder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with
applicable law (other than laws not generally applicable to all Holders of
Registrable Securities wishing to sell Registrable Securities pursuant to the
Shelf Registration Statement and related Prospectus) and, if the Parent shall
file a post-effective amendment to the Shelf Registration Statement, use
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reasonable efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as is practicable; (ii) provide
such Holder copies of any documents filed pursuant to Section 2(d)(i); and (iii)
notify such Holder as promptly as reasonably practicable after the effectiveness
under the Securities Act of any post-effective amendment filed pursuant to
Section 2(d)(i); provided, that if such Notice and Questionnaire is delivered
during a Deferral Period, the Parent shall so inform the Holder delivering such
Notice and Questionnaire and shall take the actions set forth in clauses (i),
(ii) and (iii) above upon expiration of the Deferral Period in accordance with
Section 3(i), provided, further, that if under applicable law the Parent has
more than one option as to the type or manner of making any such filing, it will
make the required filing or filings in the manner or of a type that is
reasonably expected to result in the earliest availability of the Prospectus for
effecting resales of Registrable Securities. Notwithstanding anything contained
herein to the contrary, the Parent shall be under no obligation to name any
Holder that is not a Notice Holder as a selling security holder in any
Registration Statement or related Prospectus; provided, however, that any Holder
that becomes a Notice Holder pursuant to the provisions of Section 2(d) of this
Agreement (whether or not such Holder was a Notice Holder at the time the
Registration Statement was declared effective) shall be named as a selling
security holder in the Registration Statement or related Prospectus in
accordance with the requirements of this Section 2(d). Notwithstanding the
provisions of Section 3, any amendments or supplements to the Registration
Statement pursuant to this Section 2(d) that solely list additional selling
shareholders need not be submitted for review by other Notice Holders or the
Initial Purchaser.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if (i) the Initial Shelf Registration Statement
has not been filed on or prior to the Filing Deadline Date, (ii) the Initial
Shelf Registration Statement has not been declared effective under the
Securities Act on or prior to the Effectiveness Deadline Date, or (iii) the
aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(i) hereof (each of the
events of a type described in any of the foregoing clauses (i) through (iii) are
individually referred to herein as an "Event," and the Filing Deadline Date in
the case of clause (i), the Effectiveness Deadline Date in the case of clause
(ii), and the date on which the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted by Section 3(i) hereof in the case
of clause (iii), being referred to herein as an "Event Date"). Events shall be
deemed to continue until the "Event Termination Date," which shall be the
following dates with respect to the respective types of Events: the date the
Initial Shelf Registration Statement is filed in the case of an Event of the
type described in clause (i), the date the Initial Shelf Registration Statement
is declared effective under the Securities Act in the case of an Event of the
type described in clause (ii), and termination of the Deferral Period that
caused the limit on the aggregate duration of Deferral Periods in a period set
forth in Section 3(i) to be exceeded in the case of the commencement of an Event
of the type described in clause (iii).
Accordingly, commencing on (and including) any Event Date and ending on
(but excluding) the next date on which there are no Events that have occurred
and are continuing (a "Damages Accrual Period"), the Company agrees to pay, as
liquidated damages and not as a penalty, an amount (the "Liquidated Damages
Amount"), payable on the Damages Payment Dates to Record Holders of then
outstanding Securities and of then outstanding shares of
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Exchangeable Common Stock delivered upon exchange of Securities that are
Registrable Securities, as the case may be, accruing, for each portion of such
Damages Accrual Period beginning on and including a Damages Payment Date (or, in
respect of the first time that the Liquidation Damages Amount is to be paid to
Holders on a Damages Payment Date as a result of the occurrence of any
particular Event, from the Event Date) and ending on but excluding the first to
occur of (A) the date on which the Damages Accrual Period ends or (B) the next
Damages Payment Date, at a rate per annum equal to one-quarter of one percent
(0.25%) for the first 90-day period from the Event Date, and thereafter at a
rate per annum equal to one-half of one percent (0.5%), of the aggregate
Applicable Principal Amount of such Securities and the aggregate Applicable
Exchange Price of such shares of Exchangeable Common Stock, as the case may be,
in each case determined as of the Business Day immediately preceding the next
Damages Payment Date; provided that in the case of a Damages Accrual Period that
is in effect solely as a result of an Event of the type described in clause (ii)
of the immediately preceding paragraph, no Liquidated Damages Amount shall be
payable by the Company to any Holder if no Holder has delivered a Notice and
Questionnaire to the Parent in accordance with Section 2(d) and the failure to
receive such a Notice and Questionnaire prevents the performance necessary to
keep such Event from occurring; provided further, that any Liquidated Damages
Amount accrued with respect to any Securities or portion thereof called for
redemption on a redemption date or exchanged for Exchangeable Common Stock on an
exchange date prior to the Damages Payment Date, shall, in any such event, be
paid instead to the Holder who submitted such Securities or portion thereof for
redemption or exchange on the applicable redemption date or exchange date, as
the case may be, on such date (or promptly following the exchange date, in the
case of exchange). Notwithstanding the foregoing, no Liquidated Damages Amounts
shall accrue as to any Security or any share of Exchangeable Common Stock issued
upon exchange of a Security that is a Registrable Security from and after the
earlier of (x) in the case of any share of Exchangeable Common Stock, the date
such security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Following the cure
of all Events requiring the payment by the Company of Liquidated Damages Amounts
to the Holders of Securities or Registrable Securities pursuant to this Section,
the accrual of Liquidated Damages Amounts will cease (without in any way
limiting the effect of any subsequent Event requiring the payment of Liquidated
Damages Amount by the Company). For the avoidance of doubt, with respect to the
payment of Liquidated Damages Amounts payable as a result of an Event occurring
after the end of one or more Damage Accrual Periods, such Liquidated Damages
Amounts shall be calculated at a rate per annum equal to one-quarter of one
percent (0.25%) for the first ninety (90) day period from such Event Date, and
thereafter at a rate per annum equal to one-half of one percent (0.50%), of the
aggregate Applicable Principal Amount of such Securities and the aggregate
Applicable Exchange Price of such shares of Exchangeable Common Stock, as the
case may be, until the next Event Termination Date on which there are no Events
which have occurred and are continuing.
The Trustee shall be entitled, on behalf of Holders of Securities or
Exchangeable Common Stock, to seek any available remedy for the enforcement of
this Agreement, including for the payment of any Liquidated Damages Amount.
Notwithstanding the foregoing, the parties agree that the sole monetary damages
payable for a violation of the terms of this Agreement with
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respect to which liquidated damages are expressly provided shall be such
liquidated damages. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(l)).
The parties hereto agree that the liquidated damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Securities and Registrable Securities by reason of the
failure of the Shelf Registration Statement to be filed or declared effective or
available for effecting resales of Registrable Securities in accordance with the
provisions hereof.
Section 3. Registration Procedures. In connection with the registration
obligations of the Parent under Section 2 hereof, the Parent shall:
(a) Before filing any Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial Purchaser
copies of all such documents proposed to be filed and use reasonable efforts to
reflect in each such document when so filed with the SEC such comments as the
Initial Purchaser reasonably shall propose within three (3) Business Days of the
delivery of such copies to the Initial Purchaser.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2(a); cause the related Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provisions then in force) under the Securities Act;
and use reasonable efforts to comply with the provisions of the Securities Act
applicable to it with respect to the disposition of all securities covered by
such Registration Statement during the Effectiveness Period in accordance with
the intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.
(c) As promptly as reasonably practicable give notice to the Notice
Holders and the Initial Purchaser (i) when any Prospectus, Prospectus
supplement, Registration Statement or post-effective amendment to a Registration
Statement has been filed with the SEC and, with respect to a Registration
Statement or any post-effective amendment, when the same has been declared
effective, (ii) of any request, following the effectiveness of the Initial Shelf
Registration Statement under the Securities Act, by the SEC or any other federal
or state governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional information,
(iii) of the issuance by the SEC or any other federal or state governmental
authority of any stop order suspending the effectiveness of any Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Parent of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation
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or threatening of any proceeding for such purpose, (v) of the occurrence of (but
not the nature of or details concerning) a Material Event (provided, however,
that no notice by the Parent shall be required pursuant to this clause (v) in
the event that the Parent either promptly files a Prospectus supplement to
update the Prospectus or a Form 8-K or other appropriate Exchange Act report
that is incorporated by reference into the Registration Statement, which, in
either case, contains the requisite information with respect to such Material
Event that results in such Registration Statement no longer containing any
untrue statement of material fact or omitting to state a material fact necessary
to make the statements contained therein not misleading) and (vi) of the
determination by the Parent that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of the
Parent (or as required pursuant to Section 3(i)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement or the lifting of any
suspension of the qualification (or exemption from qualification) of any of the
Registrable Securities for sale in any jurisdiction in which they have been
qualified for sale, in either case at the earliest possible moment or, if any
such order or suspension is made effective during any Deferral Period, at the
earliest possible moment after the expiration of such Deferral Period.
(e) If reasonably requested by the Initial Purchaser or any Notice
Holder, as promptly as reasonably practicable incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchaser or such Notice Holder shall, on the basis
of a reasonable opinion of nationally recognized counsel experienced in such
matters (which opinion shall be in writing), determine to be required to be
included therein by applicable law and make any required filings of such
Prospectus supplement or such post-effective amendment; provided, that the
Parent shall not be required to take any actions under this Section 3(e) that
are not, in the reasonable opinion of counsel for the Parent, in compliance with
applicable law.
(f) As promptly as reasonably practicable furnish to each Notice Holder
and the Initial Purchaser, upon their request and without charge, at least one
(1) conformed copy of the Registration Statement and any amendment thereto,
including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless reasonably requested in writing to the Parent by such Notice Holder or
the Initial Purchaser, as the case may be).
(g) During the Effectiveness Period, deliver to each Notice Holder in
connection with any sale of Registrable Securities pursuant to a Registration
Statement, without charge, as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such Notice Holder may reasonably
request; and the Parent hereby consents (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the manner set forth
therein.
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(h) Subject to Section 3(i), prior to any public offering of the
Registrable Securities pursuant to the Shelf Registration Statement, use
reasonable efforts to register or qualify or cooperate with the Notice Holders
in connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing (which request may be
included in the Notice and Questionnaire), it being agreed that no such
registration or qualification will be required unless so requested; prior to any
public offering of the Registrable Securities pursuant to the Shelf Registration
Statement, use reasonable efforts to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period
in connection with such Notice Holder's offer and sale of Registrable Securities
pursuant to such registration or qualification (or exemption therefrom) and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of such Registrable Securities in the manner
set forth in the relevant Registration Statement and the related Prospectus;
provided, that the Parent will not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Agreement or (ii) take any action
that would subject it to general service of process in suits or to taxation in
any such jurisdiction where it is not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of any event or the existence
of any fact (a "Material Event") as a result of which any Registration Statement
shall 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, or any Prospectus shall 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 (including, in any such case, as a
result of the non-availability of financial statements), or (C) the occurrence
or existence of any pending corporate development that, in the discretion of the
Parent, makes it appropriate to suspend the availability of the Shelf
Registration Statement and the related Prospectus, (i) in the case of clause (B)
above, subject to the next sentence, as promptly as practicable prepare and file
a post-effective amendment to such Registration Statement or a supplement to the
related Prospectus or any document incorporated therein by reference or file any
other required document that would be incorporated by reference into such
Registration Statement and Prospectus so that such Registration Statement does
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 such Prospectus does 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, as thereafter
delivered to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to a Registration Statement,
subject to the next sentence, use reasonable efforts to cause it to be declared
effective as promptly as is reasonably practicable, and (ii) give notice to the
Notice Holders that the availability of the Shelf Registration Statement is
suspended (a "Deferral Notice") and, upon receipt of any Deferral Notice, each
Notice Holder agrees not to sell any Registrable Securities
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pursuant to the Registration Statement until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in clause (i)
above, or until it is advised in writing by the Parent that the Prospectus may
be used, and has received copies of any additional or supplemental filings that
are incorporated or deemed incorporated by reference in such Prospectus if such
Notice Holder is required to deliver such filings that are incorporated by
reference in order to sell Registrable Securities. The Parent will use
reasonable efforts to ensure that the use of the Prospectus may be resumed (x)
in the case of clause (A) above, as promptly as is practicable, (y) in the case
of clause (B) above, as soon as, in the sole judgment of the Parent, public
disclosure of such Material Event would not be prejudicial to or contrary to the
interests of the Parent or, if necessary to avoid unreasonable burden or
expense, as soon as reasonably practicable thereafter and (z) in the case of
clause (C) above, as soon as, in the discretion of the Parent, such suspension
is no longer appropriate. The period during which the availability of the
Registration Statement and any Prospectus is suspended (the "Deferral Period")
shall, without the Company incurring any obligation to pay liquidated damages
pursuant to Section 2(e), not exceed forty-five (45) days in any three (3) month
period and ninety (90) days in any twelve (12) month period.
(j) If reasonably requested in writing in connection with a disposition
of Registrable Securities pursuant to a Registration Statement, make reasonably
available for inspection during normal business hours by a representative for
the Notice Holders of such Registrable Securities and any attorneys and
accountants retained by such Notice Holders, all relevant financial and other
records, pertinent corporate documents and properties of the Parent and its
subsidiaries, and cause the appropriate executive officers, directors and
designated employees of the Parent and its subsidiaries to make reasonably
available for inspection during normal business hours all relevant information
reasonably requested by such representative for the Notice Holders or any such
attorneys or accountants in connection with such disposition, in each case as is
customary for similar "due diligence" examinations; provided, however, that such
persons shall first agree in writing with the Parent that any information that
is reasonably and in good faith designated by the Parent in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons and shall be used solely for the purposes of
exercising rights under this Agreement, unless (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 any Registration
Statement or the use of any Prospectus referred to in this Agreement), (iii)
such information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or (iv) such
information becomes available to any such person from a source other than the
Parent and such source is not bound by a confidentiality agreement; and provided
further, that the foregoing inspection and information gathering shall, to the
greatest extent possible, be coordinated on behalf of all the Notice Holders and
the other parties entitled thereto by the counsel referred to in Section 5.
(k) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earning statements (which need
not be audited) satisfying the provisions of Section 11 (a) of the Securities
Act and Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12 month period (or
90 days after the end of any 12 month period if such period is a fiscal year)
11
commencing on the first day of the first fiscal quarter of the Parent commencing
after the effective date of a Registration Statement, which statements shall
cover said 12 month periods.
(1) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold pursuant to a Registration Statement, and cause such Registrable Securities
to be in such denominations as are permitted by the Indenture and registered in
such names as such Notice Holder may request in writing at least two Business
Days prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities covered by
each Registration Statement not later than the effective date of such
Registration Statement and provide the transfer agent for the Common Stock with
printed certificates for the Registrable Securities that are in a form eligible
for deposit with The Depository Trust Company.
(n) Make a reasonable effort to provide such information as is required
for any filings required to be made with the National Association of Securities
Dealers, Inc.
(o) Upon (i) the filing of the Initial Shelf Registration Statement and
(ii) the effectiveness of the Initial Shelf Registration Statement, announce the
same, in each case by release to Businesswire or other means of dissemination
reasonably expected to make such information known publicly.
(p) Take all such other reasonable necessary actions in connection
therewith (including those reasonably requested by the holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate
disposition of such Registrable Securities; provided that the Parent shall not
be required to take any action in connection with an underwritten offering
without its written consent.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder of Registrable Securities 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 Parent with a Notice and Questionnaire as required pursuant to
Section 2(d) hereof (including the information required to be included in such
Notice and Questionnaire) and the information set forth in the next sentence.
Each Notice Holder agrees promptly to furnish to the Parent all information
required to be disclosed in order to make the information previously furnished
to the Parent by such Notice Holder not misleading and any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in the Registration Statement under
applicable law or pursuant to SEC comments or as the Parent may reasonably
request.
Section 5. Registration Expenses. The Parent or the Company (as they
may agree among themselves) shall bear all fees and expenses incurred in
connection with the performance by the Company and the Parent of their
respective obligations under Sections 2 and 3 of this Agreement whether or not
any of the Registration Statements are declared effective. Such fees and
expenses shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (x) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (y) of compliance with federal and
12
state securities or Blue Sky laws (including, without limitation, reasonable
fees and disbursements of the counsel specified in the next sentence in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as the Notice Holders of a majority of the
Registrable Securities being sold pursuant to a Registration Statement may
designate), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company), (iii) duplication expenses relating to
copies of any Registration Statement or Prospectus delivered to any Holders
hereunder, (iv) fees and disbursements of counsel for the Parent and the Company
in connection with the Shelf Registration Statement, and (v) reasonable fees and
disbursements of the Trustee and its counsel and of the registrar and transfer
agent for the Common Stock. In addition, the Company shall bear or reimburse the
Notice Holders for the reasonable fees and disbursements of one firm of legal
counsel for the Holders, which shall initially be Cleary, Gottlieb, ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, but which may, upon the written consent of the Initial Purchaser
(which shall not be unreasonably withheld), be another nationally recognized law
firm experienced in securities law matters designated by the Company. In
addition, the Company and the Parent shall pay the internal expenses of the
Company and the Parent (including, without limitation, all salaries and expenses
of officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the Registrable Securities on any securities exchange on which similar
securities of the Parent are then listed and the fees and expenses of any
person, including special experts, retained by the Company or the Parent.
Section 6. Indemnification; Contribution. (a) The Parent agrees to
indemnify and hold harmless the Initial Purchaser and each holder of Registrable
Securities and each person, if any, who controls the Initial Purchaser or any
holder of Registrable Securities within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment or supplement thereto),
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary in order to make the statements therein
not misleading, or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto),
or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected
with the prior written consent of the Parent; and
13
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel), reasonably incurred
in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i) or
(ii) above, subject to Section 6(c);
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Parent by or on behalf of
Initial Purchaser, such holder of Registrable Securities (which also
acknowledges the indemnity provisions herein) or any person who controls the
Initial Purchaser or any such holder of Registrable Securities expressly for use
in the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto); provided,
further, that this indemnity agreement shall not apply to any loss, liability,
claim, damage or expense (1) arising from an offer or sale of Registrable
Securities occurring during a Deferral Period, if a Deferral Notice was given to
such Notice Holder in accordance with Section 8(c), or (2) if the Holder fails
to deliver at or prior to written confirmation of sale, the most recent
Prospectus, as amended or supplemented, and such Prospectus, as amended or
supplemented, would have corrected such untrue statement or omission or alleged
untrue statement or omission of a material fact.
(b) In connection with any Shelf Registration in which a holder,
including, without limitation, the Initial Purchaser, of Registrable Securities
is participating, in furnishing information relating to such holder of
Registrable Securities to the Parent in writing expressly for use in such
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto, the holders of such Registrable Securities
agree, severally and not jointly, to indemnify and hold harmless the Initial
Purchaser and each person, if any, who controls the Initial Purchaser within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act and the Parent, and each person, if any, who controls the Parent within the
meaning of either such Section, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Parent by or on behalf of
such holder of Registrable Securities (which also acknowledges the indemnity
provisions herein) or any person who controls any such holder of Registrable
Securities expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
Each Holder severally, but not jointly, agrees to indemnify and hold
harmless the Parent, the holders of Registrable Securities, and each person, if
any, who controls the Parent or any holder of Registrable Securities within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the
14
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment or supplement thereto) in reliance upon and
in conformity with written information furnished to the Parent by or on behalf
of such Holder expressly for use in the Registration Statement (or any amendment
thereto) or such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action or proceeding commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of these indemnity provisions. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 hereof (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 90 days after
receipt by such indemnifying party of aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 45
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement; provided, that an indemnifying
party shall not be liable for any such settlement effected without its consent
if such indemnifying party (i) reimburses such indemnified party in accordance
with such request to the extent it considers such request to be reasonable and
(2) provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
(e) If the indemnification provided for in this Section 6 is for any
reason unavailable to or insufficient although applicable in accordance with its
terms to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, in such
15
proportion as is appropriate to reflect the relative fault of the indemnifying
party or parties on the one hand and of the indemnified party on the other hand
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Parent on the one hand and the holders of the
Registrable Securities or the Initial Purchaser on the other hand shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Parent or by the
holder of the Registrable Securities or the Initial Purchaser and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(e). The
aggregate amount of losses, liabilities, claims, damages, and expenses incurred
by an indemnified party and referred to above in this Section 6(e) shall be
deemed to include any legal or other out-of-pocket expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 6, no holder of any
Registrable Securities shall be required to indemnify or contribute, and the
Initial Purchaser shall not be required to contribute, any amount in excess of
the amount by which the total price at which the Registrable Securities sold by
such holder of Registrable Securities or by the Initial Purchaser exceeds the
amount of any damages that such holder of Registrable Securities or the Initial
Purchaser 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.
For purposes of this Section 6(e), each person, if any, who controls
the Initial Purchaser or any holder of Registrable Securities within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Initial Purchaser or such holder, and
each person, if any, who controls the Parent within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act shall have the same rights
to contribution as the Parent.
Section 7. Information Requirements. The Parent covenants that, if at
any time before the end of the Effectiveness Period the Parent is not subject to
the reporting requirements of the Exchange Act, it will cooperate with any
Holder of Registrable Securities and take such further reasonable action as any
Holder of Registrable Securities may reasonably request in writing (including,
without limitation, making such reasonable representations as any
16
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A under the Securities Act and customarily taken in
connection with sales pursuant to such exemptions. Upon the written request of
any Holder of Registrable Securities, the Parent shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Parent's most recent report
required to be filed and filed pursuant to Section 13 or Section 15(d) of
Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Parent to register any of its securities under any section
of the Exchange Act.
Section 8. Miscellaneous.
(a) No Conflicting Agreements. Neither the Company nor the Parent is,
as of the date hereof, a party to, nor shall either of them, on or after the
date of this Agreement, enter into, any agreement with respect to the securities
of the Parent that conflicts with the rights granted to the Holders of
Registrable Securities in this Agreement. The Company and the Parent each
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Parent's securities under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Parent has obtained the written consent of Holders of a
majority of the then outstanding Exchangeable Common Stock constituting
Registrable Securities (with Holders of Securities deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Exchangeable
Common Stock into which such Securities are or would be exchangeable as of the
date on which such consent is requested). 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 the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided, that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier guaranteeing overnight delivery or by first-class mail, return receipt
requested, and shall be deemed given (i) when made, if made by hand delivery,
(ii) upon confirmation, if made by telecopier, (iii) one (1) Business Day after
being deposited with such courier, if made by overnight courier
17
or (iv) on the date indicated on the notice of receipt, if made by first-class
mail, to the parties as follows:
if to a Holder of Registrable Securities, at the most current address
given by such Holder to the Parent in a Notice and Questionnaire or any
amendment thereto;
if to the Company or the Parent, to:
The ▇▇▇▇▇ ▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
Telecopier number (▇▇▇) ▇▇▇-▇▇▇▇
and
Shearman & Sterling
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopier: 212-848-7179
and
if to the Initial Purchaser, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
World Financial Center
North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Syndicate Department
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of
a specified percentage of Registrable Securities is required hereunder, any
Registrable Securities held by the Parent, the Company or affiliates of either
(as such term is defined in Rule 405 under the Securities Act) (other than the
Initial Purchaser or subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without
18
limitation and without the need for an express assignment, subsequent Holders;
provided that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of the terms of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Registrable Securities, in any manner, whether by operation of law or
otherwise, such Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable Securities such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such person shall be entitled to receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Heading. 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, WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES THEREOF.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held 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 thereby, 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 being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(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 and the registration rights
granted by the Parent with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Parent with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights.
(k) No Recourse Against Others. The Company is a business trust and its
Declaration of Trust limits the personal liability of its shareholders,
trustees, and officers and employees. For satisfaction of claims against and
obligations of the Company of any nature arising out of this Indenture or
otherwise in connection with the affairs of the Company, the Trustee shall look
solely to the trust property of the Company and it shall not seek redress or
19
satisfaction for such claims or obligations from any shareholder, trustee,
officer, or employee of the Company (except in each case as may be otherwise
expressly agreed in writing by any such person).
(1) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the expiration of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
[Remainder of this page intentionally left blank]
20
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT
By: _______________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇▇▇ CORP.
By: _______________________________
Name:
Title:
Confirmed and accepted as of the date
first above written:
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By: _______________________________
Name:
Title:
21