Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
Dated as of November 16, 2004
between
SELECTIVE INSURANCE GROUP, INC.
as Issuer
AND
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
as Initial Purchaser
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of November
16, 2004 between Selective Insurance Group, Inc., a New Jersey corporation
(the "Company") and ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
November 10, 2004, between the Company and the Initial Purchaser (the
"Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchaser of $50,000,000 aggregate principal amount of the Company's
7.25% Senior Notes due 2034 (the "Notes"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement and in satisfaction of a
condition to the Initial Purchaser's obligations thereunder, the Company has
agreed to provide to the Initial Purchaser and its respective direct and
indirect transferees and assigns the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time, and the rules and regulations of the
SEC promulgated thereunder.
"Additional Interest" shall have the meaning set forth in
Section 2(e) hereof.
"Applicable Period" shall have the meaning set forth in
Section 3(f)(B) hereof.
"Company" shall have the meaning set forth in the preamble
to this Agreement.
"Closing Time" shall mean November 16, 2004.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, including any agent
thereof; provided, however, that any such depositary must at all
times have an address in the Borough of Manhattan, The City of New
York.
"Event Date" shall have the meaning set forth in Section
2(e) hereof.
"Exchange Offer" shall mean the exchange offer by the
Company of Exchange Securities for Registrable Securities pursuant to
Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration
under the 1933 Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean any
exchange offer registration statement of the Company on Form S-4 (or,
if applicable, on another appropriate form) covering the Registrable
Securities, and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated or deemed to be
incorporated by reference therein.
"Exchange Notes" shall mean the Notes, issued by the Company
under the Indenture with terms identical to the Notes (except that
(i) interest thereon shall accrue from the last date to which
interest has been paid or duly provided for on the Notes or, if no
such interest has been paid or duly provided for, from the Interest
Accrual Date, (ii) provisions relating to an increase in the stated
rate of interest thereon upon the occurrence of a Registration
Default shall be eliminated and (iii) the transfer restrictions,
minimum purchase requirements and legends relating to restrictions on
ownership and transfer thereof as a result of the issuance of the
Notes without registration under the 1933 Act shall be eliminated
other than requiring transfers in multiples of $1,000) to be offered
to Holders of Registrable Securities in exchange for Registrable
Securities pursuant to the Exchange Offer.
"Holders" shall mean (i) the Initial Purchaser, for so long
as such Initial Purchaser owns any Registrable Securities, and each
of its successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture and (ii) each Participating Broker-Dealer that holds
Exchange Securities for so long as such Participating Broker-Dealer
is required to deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange Securities.
"Indenture" shall mean the Indenture, dated as of November
16, 2004, by and between the Company and Wachovia Bank, National
Association, as trustee, as the same may be further amended or
supplemented from time to time in accordance with the terms thereof.
"Interest Accrual Date" means November 16, 2004.
"Initial Purchaser" shall have the meaning set forth in the
preamble of this Agreement.
"Majority Holders" shall mean, with respect to any
Registration Statement, the Holders of a majority of the aggregate
principal amount of Registrable Securities for whose benefit such
Registration Statement is being prepared, excluding Exchange
Securities referred to in clause (ii) of the definition of "Holders"
above; provided that whenever the consent or approval of Holders of a
specified percentage of Registrable Securities or Exchange Securities
is required hereunder, Registrable Securities and Exchange Securities
held by the Company or any of its affiliates (as such term is defined
in Rule 405 under the ▇▇▇▇ ▇▇▇) shall be disregarded in determining
whether such consent or approval was given by the Holders of such
required percentage.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble of
this Agreement.
"Notifying Broker-Dealer" shall have the meaning set forth
in Section 3(f) hereof.
"Participating Broker-Dealer" shall have the meaning set
forth in Section 3(f) hereof.
"Person" shall mean an individual, partnership, joint
venture, limited liability company, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated or
deemed to be incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Registrable Securities" shall mean the Notes; provided,
however, that any Notes shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Notes shall have
been declared effective under the 1933 Act and such Notes shall have
been disposed of pursuant to such Registration Statement, (ii) such
Notes shall have been sold pursuant to Rule 144 (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, (iii)
such Notes shall have ceased to be outstanding, or (iv) such Notes
have been exchanged for Exchange Securities which have been
registered pursuant to the Exchange Offer Registration Statement upon
consummation of the Exchange Offer unless, in the case of any
Exchange Securities referred to in this clause (iv), such Exchange
Securities are held by Participating Broker-Dealers or otherwise are
not freely tradable without any limitations or restrictions under the
1933 Act (in which case such Exchange Securities will be deemed to be
Registrable Securities until the earlier of (A) expiration of the
Applicable Period and (B) such time as such Exchange Securities are
sold to a purchaser in whose hands such Exchange Securities are
freely tradeable without any limitations or restrictions under the
1933 Act).
"Registration Default" shall have the meaning set forth in
Section 2(e) hereof.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock exchange
or NASD registration and filing fees; (ii) all fees and expenses
incurred in connection with compliance with state or other securities
or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of one counsel for all the
underwriters or Holders as a group in connection with qualification
of any of the Exchange Securities or Registrable Securities under
state or other securities or blue sky laws and any filing with and
review by the NASD); (iii) all expenses of any Persons in preparing,
printing and distributing any Registration Statement, any Prospectus,
any amendments or supplements thereto, any underwriting agreements,
securities sales agreements, and certificates representing the Notes
or Exchange Securities and other documents relating to the
performance of and compliance with this Agreement; (iv) all rating
agency fees; (v) all fees and expenses incurred in connection with
the listing, if any, of any of the Notes or Exchange Securities on
any securities exchange or exchanges or on any quotation system; (vi)
all fees and disbursements relating to the qualification of the
Indenture under applicable securities laws; (vii) the fees and
disbursements of counsel for the Company and the fees and expenses of
independent public accountants for the Company or for any other
Person, business or assets whose financial statements are included in
any Registration Statement or Prospectus, including the expenses of
any special audits or "cold comfort" letters required by or incident
to such performance and compliance; (viii) the fees and expenses of a
"qualified independent underwriter" as defined by Conduct Rule 2720
of the NASD (if required by the NASD rules) and the fees and
disbursements of its counsel; (ix) the fees and expenses of the
Trustee, any registrar, any depositary, any paying agent, any escrow
agent or any custodian, in each case including fees and disbursements
of their respective counsel; (x) the fees and disbursements of one
counsel (in addition to any local counsel) representing the Initial
Purchaser and the Holders of Registrable Securities in connection
with any Registration Statement (which counsel shall be Sidley ▇▇▇▇▇▇
▇▇▇▇▇ & ▇▇▇▇ LLP unless another firm, reasonably satisfactory to the
Company, shall be selected by the Holders of a majority of the
aggregate principal amount of Registrable Securities for whose
benefit such Registration Statement is being prepared); and (xii) in
the case of an underwritten offering, any fees and disbursements of
the underwriters customarily paid by issuers and sellers of
securities and the fees and expenses of any special experts retained
by the Company in connection with any Registration Statement but
excluding (except as otherwise provided herein) fees and
disbursements of counsel to the underwriters and the Holders and
underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a
Holder.
"Registration Statement" shall mean any registration
statement of the Company relating to any offering of the Exchange
Securities or Registrable Securities pursuant to the provisions of
this Agreement (including, without limitation, any Exchange Offer
Registration Statement and any Shelf Registration Statement), and all
amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated or deemed to be incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or
any successor thereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2(b) of this Agreement which covers all of the Registrable
Securities on an appropriate form under Rule 415 under the 1933 Act,
or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
or deemed to be incorporated by reference therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended
from time to time, and the rules and regulations of the SEC
promulgated thereunder.
"Trustee" shall mean Wachovia Bank, National Association,
the trustee with respect to the Notes and the Exchange Securities
under the Indenture.
For purposes of this Agreement: (i) all references in this Agreement
to any Registration Statement, Prospectus or any amendment or supplement to
any of the foregoing shall be deemed to include the copy filed with the SEC
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("▇▇▇▇▇"); (ii) all references in this Agreement to financial statements and
schedules and other information which is "contained," "included," "disclosed"
or "stated" in any Registration Statement or Prospectus (or other references
of like import) shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated or deemed
to be incorporated by reference in such Registration Statement or Prospectus,
as the case may be; (iii) all references in this Agreement to amendments or
supplements to any Registration Statement or Prospectus shall be deemed to
mean and include the filing of any document under the 1934 Act which is
incorporated or deemed to be incorporated by reference in such Registration
Statement or Prospectus, as the case may be; (iv) all references in this
Agreement to Rule 144, Rule 144A, Rule 405 or Rule 424 under the 1933 Act, and
all references to any sections or subsections thereof or terms defined
therein, shall in each case include any successor provisions thereto; and (v)
all references in this Agreement to days (but not to business days) shall mean
calendar days.
2. Registration Under the 1933 Act.
(a) Exchange Offer Registration. To the extent not prohibited by any
change in law or applicable interpretations thereof by the staff of the SEC,
the Company shall (A) file with the SEC on or prior to the 120th day after the
Closing Time an Exchange Offer Registration Statement covering the offer by
the Company to the Holders to exchange all of the Registrable Securities for a
like aggregate principal amount of Exchange Securities, (B) use its reasonable
best efforts to cause such Exchange Offer Registration Statement to be
declared effective by the SEC no later than the 180th day after the Closing
Time, (C) use its reasonable best efforts to cause such Registration Statement
to remain effective until the closing of the Exchange Offer and (D) will use
its reasonable best efforts to consummate the Exchange Offer no later than 45
days after the effective date of the Exchange Offer Registration Statement.
Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer, it being the objective of
such Exchange Offer to enable each Holder eligible and electing to exchange
Registrable Securities for Exchange Securities (provided that such Holder is
not an affiliate of the Company within the meaning of Rule 405 under the 1933
Act, acquires the Exchange Securities in the ordinary course of such Holder's
business and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing such
Exchange Securities) to trade such Exchange Securities from and after their
receipt without any limitations or restrictions under the 1933 Act or under
the securities or blue sky laws of the states of the United States other than
requiring transfers in multiples of $1,000.
In connection with the Exchange Offer, the Company shall:
(i) promptly mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement, together
with an appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the date notice
thereof is mailed to the Holders and, during the Exchange Offer,
offer to all Holders who are legally eligible to participate in the
Exchange Offer the opportunity to exchange their Registrable
Securities for Exchange Securities;
(iii) use the services of a depositary with an address in
the Borough of Manhattan, The City of New York for the Exchange
Offer;
(iv) permit Holders to withdraw tendered Registrable
Securities at any time prior to the close of business, New York City
time, on the last business day on which the Exchange Offer shall
remain open, by sending to the institution specified in the
Prospectus or the related letter of transmittal or related documents
a facsimile transmission or letter setting forth the name of such
Holder, the principal amount of Registrable Securities delivered for
exchange, and a statement that such Holder is withdrawing its
election to have such Registrable Securities exchanged;
(v) notify each Holder that any Registrable Security not
tendered will remain outstanding and continue to accrue interest, but
will not retain any rights under this Agreement (except in the case
of the Initial Purchaser and Participating Broker-Dealers as provided
herein); and
(vi) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
The Exchange Securities shall be issued under the Indenture, which
shall be qualified under the TIA. The Notes shall provide that the Exchange
Securities issued in respect thereof issued in respect thereof and the Notes
shall vote and consent together on all matters as a single class and shall
constitute a single series of debt securities issued under the Indenture.
As soon as practicable after the expiration of the Exchange Offer,
the Company shall:
(i) accept for exchange all Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer Registration
Statement and the letter of transmittal which is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities so accepted for exchange by
the Company; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to each Holder of Registrable Securities so
accepted for exchange equal in principal amount to the principal
amount of the Registrable Securities of such Holder so accepted for
exchange.
Interest on each Exchange Security will accrue from the last date on
which interest was paid or duly provided for on the Notes surrendered in
exchange therefor or, if no interest has been paid or duly provided for on
such Notes, from the Interest Accrual Date. Each Holder of Registrable
Securities (other than Participating Broker-Dealers) who wishes to exchange
such Registrable Securities for Exchange Securities in the Exchange Offer will
be required to represent that (i) it is not an affiliate (as defined in Rule
405 under the ▇▇▇▇ ▇▇▇) of the Company, (ii) any Exchange Securities to be
received by it will be acquired in the ordinary course of business and (iii)
it has no arrangement with any Person to participate in the distribution
(within the meaning of the ▇▇▇▇ ▇▇▇) of the Exchange Securities, and shall be
required to make such other representations as may be reasonably necessary
under applicable SEC rules, regulations or interpretations to render the use
of Form S-4 or another appropriate form under the 1933 Act available. To the
extent permitted by law, the Company shall inform the Initial Purchaser of the
names and addresses of the Holders of Notes to whom the Exchange Offer is made
and, to the extent such information is available to the Company, the names and
addresses of the beneficial owners of such Notes, and the Initial Purchaser
shall have the right to contact such Holders and beneficial owners and
otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
(b) Shelf Registration. (i) If, because of any change in law or
applicable interpretations thereof by the staff of the SEC, the Company is not
permitted to effect the Exchange Offer as contemplated by Section 2(a) hereof,
or (ii) if for any other reason (A) the Exchange Offer Registration Statement
is not declared effective within 180 days following the Closing Time or (B)
the Exchange Offer is not consummated within 45 days after effectiveness of
the Exchange Offer Registration Statement (provided that if the Exchange Offer
Registration Statement shall be declared effective after such 180-day period
or if the Exchange Offer shall be consummated after such 45-day period, then
the Company's obligations under this clause (ii) arising from the failure of
the Exchange Offer Registration Statement to be declared effective within such
180-day period or the failure of the Exchange Offer to be consummated within
such 45-day period, respectively, shall terminate), or (iii) if any Holder
(other than the Initial Purchaser holding Notes acquired directly from the
Company or a Participating Broker-Dealer) is not eligible to participate in
the Exchange Offer (for any reason other than the failure by such Holder to
make a timely and valid tender in accordance with the Exchange Offer) or who
elects to participate in the Exchange Offer but does not receive Exchange
Securities which are freely tradeable without any limitations or restrictions
under the 1933 Act or (iv) upon the request of the Initial Purchaser within
120 days following the consummation of the Exchange Offer (provided that, in
the case of this clause (iv), such Initial Purchaser shall hold Registrable
Securities (including, without limitation, Private Exchange Securities) from
an initial allotment that it acquired directly from the Company), the Company
shall, at its cost:
(A) as promptly as practicable, but no later than (a) in the
case of clause (i) above, the 120th day after the Closing Time or (b)
in the case of clause (ii), (iii) or (iv) above, the 60th day after
any such filing obligation arises (the "Shelf Filing Deadline"), file
with the SEC a Shelf Registration Statement relating to the offer and
sale of the Registrable Securities by the Holders from time to time
in accordance with the methods of distribution elected by the
Majority Holders and set forth in such Shelf Registration Statement;
(B) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the SEC as
promptly as practicable, but in no event later than the 180th day
after the Closing Time (or, in the case of a request by the Initial
Purchaser pursuant to clause (ii), (iii) or (iv) above, within 90
days after such filing obligation arises) (the "Shelf Effectiveness
Deadline"). In the event that the Company is required to file a Shelf
Registration Statement pursuant to clause (iii) or (iv) above, the
Company shall file and use its reasonable best efforts to have
declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable
Securities and a Shelf Registration Statement (which may be a
combined Registration Statement with the Exchange Offer Registration
Statement) with respect to offers and sales of Registrable Securities
held by such Initial Purchaser;
(C) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required, in order to permit the Prospectus forming part
thereof to be usable by Holders for a period of two years after the
latest date on which any Securities are originally issued by the
Company (subject to extension pursuant to the last paragraph of
Section 3) or, if earlier, when all of the Registrable Securities
covered by such Shelf Registration Statement (i) have been sold
pursuant to the Shelf Registration Statement, (ii) become eligible
for resale pursuant to Rule 144(k) under the 1933 Act or (iii) cease
to be Registrable Securities; and
(D) notwithstanding any other provisions hereof, use its
reasonable best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus forming a part
thereof and any supplements thereto comply in all material respects
with the 1933 Act and the rules and regulations thereunder, (ii) any
Shelf Registration Statement and any amendment or supplement thereto
does not, when it becomes effective, 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 not misleading
and (iii) any Prospectus forming part of any Shelf Registration
Statement and any amendment or supplement to such Prospectus does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
The Company shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration Statement without the
prior written consent of the Initial Purchaser. The Company further agrees, if
necessary, to supplement or amend the Shelf Registration Statement if
reasonably requested by the Majority Holders with respect to information
relating to the Holders and otherwise as required by Section 3(b) below, to
use its reasonable best efforts to cause any such amendment to become
effective and such Shelf Registration Statement to become usable as soon as
practicable thereafter and to furnish to the Holders of Registrable Securities
copies of any such supplement or amendment promptly after its being used or
filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) and 2(b) hereof.
Each Holder shall pay all fees and disbursements of its counsel other than as
set forth in the definition of Registration Expenses and all underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to a Shelf
Registration Statement.
(d) Effective Registration Statement.
(i) The Company shall be deemed not to have used its
reasonable best efforts to cause the Exchange Offer Registration
Statement or any Shelf Registration Statement, as the case may be, to
become, or to remain, effective during the requisite periods set
forth herein if the Company takes any action or fails to take action
that could reasonably be expected to result in any such Registration
Statement not being declared effective or remaining effective or in
the case of the Holders of Registrable Securities (including, under
the circumstances contemplated by Section 3(f) hereof, Exchange
Securities) covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period unless (A) such
action is required by applicable law or (B) such action is taken by
the Company in good faith and for valid business reasons (but not
including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets or a material
corporate transaction or event so long as the Company promptly
complies with the notification requirements of Section 3(k) hereof,
if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof shall not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however,
that if, after such Registration Statement has been declared
effective, the offering of Registrable Securities pursuant to a
Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Registration Statement shall be
deemed not to have been effective during the period of such
interference until the offering of Registrable Securities pursuant to
such Registration Statement may legally resume.
(iii) During any 365-day period, the Company may, by notice
as described in Section 3(e) hereof, suspend the availability of a
Shelf Registration Statement (and, if the Exchange Offer Registration
Statement is being used in connection with the resale of Exchange
Securities by Participating Broker Dealers as contemplated by Section
3(f), the Exchange Offer Registration Statement) and the use of the
related Prospectus for up to 45 days during any 90-day period but no
more than an aggregate of 120 days during any 365-day period, upon
the happening of any event or the discovery of any fact or the taking
of any action referred to in Section 3(e)(vi), but subject to
compliance by the Company with its obligations under the last
paragraph of Section 3.
(e) Increase in Interest Rate. In the event that:
(i) the Exchange Offer Registration Statement is not filed
with the SEC on or prior to the 120th day following the Closing Time,
or
(ii) the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the 180th day following
the Closing Time, or
(iii) the Exchange Offer is not consummated on or prior to
the 45th day following the effective date of the Exchange Offer
Registration Statement, or
(iv) if required, a Shelf Registration Statement is not
filed with the SEC on or prior to the Shelf Filing Deadline, or
(v) if required, a Shelf Registration Statement is not
declared effective on or prior to the Shelf Effectiveness Deadline,
or
(vi) a Shelf Registration Statement is declared effective by
the SEC but such Shelf Registration Statement ceases to be effective
or such Shelf Registration Statement or the Prospectus included
therein ceases to be usable in connection with resales of Registrable
Securities for any reason and (A) the aggregate number of days in any
consecutive 90-day period for which the Shelf Registration Statement
or such Prospectus shall not be effective or usable exceeds 45 days
or (B) the aggregate number of days in any consecutive 365-day period
for which the Shelf Registration Statement or such Prospectus shall
not be effective or usable exceeds 120 days, or
(vii) the Exchange Offer Registration Statement is declared
effective by the SEC but, if the Exchange Offer Registration
Statement is being used in connection with the resale of Exchange
Securities as contemplated by Section 3(f)(B) of this Agreement, the
Exchange Offer Registration Statement ceases to be effective or the
Exchange Offer Registration Statement or the Prospectus included
therein ceases to be usable in connection with resales of Exchange
Securities for any reason during the Applicable Period and (A) the
aggregate number of days in any consecutive 90-day period for which
the Exchange Offer Registration Statement or such Prospectus shall
not be effective or usable exceeds 45 days or (B) the aggregate
number of days in any consecutive 365-day period for which the
Exchange Offer Registration Statement or such Prospectus shall not be
effective or usable exceeds 120 days,
(each of the events referred to in clauses (i) through (vii) above being
hereinafter called a "Registration Default"), the per annum interest rate
borne by the Registrable Securities shall be increased ("Additional Interest")
by one-quarter of one percent (0.25%) per annum immediately following such
120-day period in the case of clause (i) above, immediately following such
180-day period in the case of clause (ii) above, immediately following such
45-day period in the case of clause (iii) above, immediately following the
Shelf Filing Deadline, in the case of clause (iv) above, immediately following
the Shelf Effectiveness Deadline, in the case of clause (v) above, immediately
following the 45th day in any consecutive 90-day period or the 120th day in
any consecutive 365-day period, whichever occurs first, that a Shelf
Registration Statement shall not be effective or a Shelf Registration
Statement or the Prospectus included therein shall not be usable as
contemplated by clause (vi) above, or immediately following the 45th day in
any consecutive 90-day period or the 120th day in any consecutive 365-day
period, whichever occurs first, that the Exchange Offer Registration Statement
shall not be effective or the Exchange Offer Registration Statement or the
Prospectus included therein shall not be usable as contemplated by clause
(vii) above, which rate will be increased by an additional one-quarter of one
percent (0.25%) per annum immediately following the first 90-day period that
any Additional Interest continues to accrue under any circumstances; provided
that the aggregate increase in such annual interest rate under this Section
2(e) may in no event exceed one-half of one percent (0.50%) per annum. Upon
the filing of the Exchange Offer Registration Statement after the 120-day
period described in clause (i) above, the effectiveness of the Exchange Offer
Registration Statement after the 180-day period described in clause (ii)
above, the consummation of the Exchange Offer after the 45-day period
described in clause (iii) above, the filing of the Shelf Registration
Statement after the Shelf Filing Deadline described in clause (iv) above, the
effectiveness of a Shelf Registration Statement after the Shelf Effectiveness
Deadline described in clause (v) above, the Shelf Registration Statement once
again being effective or the Shelf Registration Statement and the Prospectus
included therein becoming usable in connection with resales of Registrable
Securities, as the case may be, in the case of clause (vi) above, or the
Exchange Offer Registration Statement once again becoming effective or the
Exchange Offer Registration Statement and the Prospectus included therein
becoming usable in connection with resales of Exchange Securities, as the case
may be, in the case of clause (vii) thereof, the interest rate borne by the
Securities from the date of such filing, effectiveness, consummation or
resumption of effectiveness or usability, as the case may be, shall be reduced
to the original interest rate so long as no other Registration Default shall
have occurred and shall be continuing at such time and the Company are
otherwise in compliance with this paragraph; provided, however, that, if after
any such reduction in interest rate, one or more Registration Defaults shall
again occur, the interest rate shall again be increased pursuant to the
foregoing provisions.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs or fails to occur in respect of
which Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the
benefit of the Holders of Registrable Securities, on or before the applicable
semiannual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The Additional Interest
due shall be payable on each interest payment date to the record Holder of
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall
be deemed to accrue from and including the day following the applicable Event
Date. Anything herein to the contrary notwithstanding, any Holder who was, at
the time the Exchange Offer was pending and consummated, eligible to exchange,
and did not validly tender, its Notes for Exchange Securities in the Exchange
Offer will not be entitled to receive any Additional Interest. For purposes of
clarity, it is hereby acknowledged and agreed that, under current
interpretations of law by the SEC, initial purchasers holding unsold
allotments of Notes acquired from the Company are not eligible to participate
in the Exchange Offer.
(f) Specific Enforcement. Without limiting the remedies available to
the Initial Purchaser and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Sections 2(a)
through 2(d) hereof may result in material irreparable injury to the Initial
Purchaser, the Holders or the Participating Broker-Dealers for which there is
no adequate remedy at law, that it will not be possible to measure damages for
such injuries precisely and that, in the event of any such failure, the
Initial Purchaser, any Holder and any Participating Broker-Dealer may obtain
such relief as may be required to specifically enforce the Company's
obligations under Sections 2(a) through 2(d) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or, if
required, Registration Statements, within the time periods specified in
Section 2, on the appropriate form under the 1933 Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf Registration
Statement, be available for the sale of the Registrable Securities by the
selling Holders thereof and, in the case of an Exchange Offer, be available
for the exchange of Registrable Securities and (iii) shall comply as to form
in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the
SEC to be filed therewith, and use its reasonable best efforts to cause such
Registration Statement to become effective (and, in the case of a Shelf
Registration Statement, usable for resales) and remain effective in accordance
with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable period;
cause each Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
1933 Act; and comply with the provisions of the 1933 Act and the 1934 Act with
respect to the disposition of all Notes covered by each Registration Statement
during the applicable period in accordance with the intended method or methods
of distribution by the selling Holders thereof;
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least ten business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is
being filed and advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method elected by the Majority
Holders; (ii) furnish to each Holder of Registrable Securities included in the
Shelf Registration, to counsel for the Initial Purchaser, to counsel for the
Holders, if any, and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder, counsel or
underwriter may reasonably request, including financial statements and
schedules and, if such Holder, counsel or underwriter so requests, all
exhibits (including those incorporated by reference) in order to facilitate
the public sale or other disposition of the Registrable Securities; and (iii)
subject to the penultimate paragraph of this Section 3, the Company hereby
consents to the use of the Prospectus, including each preliminary Prospectus,
or any amendment or supplement thereto by each of the Holders of Registrable
Securities included in the Shelf Registration and underwriters of Registrable
Securities in connection with the offering and sale of the Registrable
Securities covered by any Prospectus or any amendment or supplement thereto;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue sky"
laws of such jurisdictions as any selling Holder of Registrable Securities
covered by a Shelf Registration Statement and each underwriter of an
underwritten offering of Registrable Securities shall reasonably request by
the time the applicable Registration Statement is declared effective by the
SEC, to cooperate with the Holders and the underwriters of any Registrable
Securities in connection with any filings required to be made with the NASD,
to keep each such registration or qualification effective during the period
such Registration Statement is required to be effective and do any and all
other acts and things which may be reasonably necessary or advisable to enable
such Holder to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the
Company shall 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 Section 3(d) or (ii) take any action which
would subject it to general service of process or taxation in any such
jurisdiction if it is not then so subject;
(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities included in the Shelf Registration and counsel for such
Holders promptly and, if requested by such Holder or counsel, confirm such
advice in writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements thereto
become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments or supplements to a Registration
Statement or Prospectus or for additional information after a Registration
Statement has become effective, (iii) of the issuance by the SEC or any state
securities authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that purpose,
(iv) if between the effective date of a Registration Statement and the closing
of any sale of Registrable Securities covered thereby the representations and
warranties of the Company contained in any underwriting agreement, securities
sales agreement or other similar agreement, if any, relating to such offering
cease to be true and correct, (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (vi) of the suspension of use
of the Prospectus as a result of the happening of any event or the discovery
of any facts or the taking of any action during the period a Shelf
Registration Statement is effective which is contemplated in Section
2(d)(i)(A) or 2(d)(i)(B) or which makes any statement made in such Shelf
Registration Statement or the related Prospectus untrue in any material
respect or which constitutes an omission to state a material fact in such
Shelf Registration Statement or Prospectus and (vii) of any determination by
the Company that a post-effective amendment to a Registration Statement would
be appropriate. Without limitation to any other provisions of this Agreement,
the Company agrees that this Section 3(e) shall also be applicable, mutatis
mutandis, with respect to the Exchange Offer Registration Statement and the
Prospectus included therein to the extent that such Prospectus is being used
by Participating Broker-Dealers as contemplated by Section 3(f);
(f) (A) in the case of an Exchange Offer, (i) include in the Exchange
Offer Registration Statement (x) a "Plan of Distribution" section
substantially in the form set forth in Annex A hereto or other such form as is
reasonably acceptable to the Initial Purchaser covering the use of the
Prospectus included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable Securities for Exchange
Securities for the resale of such Exchange Securities and (y) a statement to
the effect that any such broker-dealers who wish to use the related Prospectus
in connection with the resale of Exchange Securities acquired as a result of
market-making or other trading activities will be required to notify the
Company to that effect, together with instructions for giving such notice
(which instructions shall include a provision for giving such notice by
checking a box or making another appropriate notation on the related letter of
transmittal) (each such broker-dealer who gives notice to the Company as
aforesaid being hereinafter called a "Notifying Broker-Dealer"), (ii) furnish
to each Notifying Broker-Dealer who desires to participate in the Exchange
Offer, without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary prospectus,
and any amendment or supplement thereto, as such broker-dealer may reasonably
request, (iii) include in the Exchange Offer Registration Statement a
statement that any broker-dealer who holds Registrable Securities acquired for
its own account as a result of market-making activities or other trading
activities (a "Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the Exchange Offer, may be a
statutory underwriter and must deliver a prospectus meeting the requirements
of the 1933 Act in connection with any resale of such Exchange Securities,
(iv) subject to the penultimate paragraph of this Section 3, the Company
hereby consents to the use of the Prospectus forming part of the Exchange
Offer Registration Statement or any amendment or supplement thereto by any
Notifying Broker-Dealer in connection with the sale or transfer of Exchange
Securities, and (v) include in the transmittal letter or similar documentation
to be executed by an exchange offeree in order to participate in the Exchange
Offer the following provision:
"If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to engage in, a
distribution of Exchange Securities. If the undersigned is a broker-dealer
that will receive Exchange Securities for its own account in exchange for
Registrable Securities, it represents that the Registrable Securities to be
exchanged for Exchange Securities were acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a prospectus meeting the requirements of the 1933 Act in
connection with any resale of such Exchange Securities pursuant to the
Exchange Offer; however, by so acknowledging and by delivering a prospectus,
the undersigned will not be deemed to admit that it is an "underwriter" within
the meaning of the 1933 Act";
(B) to the extent any Notifying Broker-Dealer participates in the
Exchange Offer, (i) the Company shall use its reasonable best efforts to
maintain the effectiveness of the Exchange Offer Registration Statement for
the lesser of (i) a period of 180 days (subject to extension pursuant to the
last paragraph of this Section 3) following the last date on which exchanges
are accepted pursuant to the Exchange Offer or (ii) the period ending on the
date on which such Notifying Broker-Dealers no longer own any Registrable
Securities (the "Applicable Period") and (ii) the Company will comply, insofar
as relates to the Exchange Offer Registration Statement, the Prospectus
included therein and the offering and sale of Exchange Securities pursuant
thereto, with its obligations under Section 2(b)(D), the last paragraph of
Section 2(b), Section 3(c), 3(d), 3(e), 3(i), 3(j), 3(k), 3(o) and 3(p), and
the last two paragraphs of this Section 3 as if all references therein to a
Shelf Registration Statement, the Prospectus included therein and the Holders
of Registrable Securities referred, mutatis mutandis, to the Exchange Offer
Registration Statement, the Prospectus included therein and the applicable
Notifying Broker-Dealers and, for purposes of this Section 3(f), all
references in any such paragraphs or sections to the "Majority Holders" shall
be deemed to mean, solely insofar as relates to this Section 3(f), the
Notifying Broker-Dealers who are the Holders of the majority in aggregate
principal amount of the Exchange Securities which are Registrable Securities;
(C) the Company shall not be required to amend or supplement the
Prospectus contained in the Exchange Offer Registration Statement as would
otherwise be contemplated by Section 3(b) or 3(k) hereof, or take any other
action as a result of this Section 3(f), at any time after the expiration of
the Applicable Period after the last date on which exchanges are accepted
pursuant to the Exchange Offer, and neither Notifying Broker-Dealers nor any
other Person shall be authorized by the Company to, and shall not, deliver
such Prospectus after such period in connection with resales contemplated by
this Section 3; and
(D) In the case of any Exchange Offer Registration Statement, the
Company agrees, if requested by the Initial Purchaser, to deliver to the
Initial Purchaser on behalf of the Participating Broker-Dealer upon the
effectiveness of the Exchange Offer Registration Statement (i) an opinion of
counsel or opinions of counsel reasonably satisfactory to the Initial
Purchaser covering the matters customarily covered in an underwritten public
offering of debt securities and such other matters as may be reasonably
requested (it being agreed that the matters to be covered by such opinion may
be subject to customary qualifications and exceptions), (ii) officers'
certificates substantially in the form customarily delivered in a public
offering of debt securities and (iii) a comfort letter or comfort letters in
customary form to the extent permitted by Statement on Auditing Standards No.
72 of the American Institute of Certified Public Accountants ("SAS 72") (or if
such a comfort letter is not permitted, an agreed upon procedures letter in
customary form) from the Company's independent certified public accountants
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for which
financial statements are, or are required to be, included in the Registration
Statement) at least as broad in scope and coverage as the comfort letter or
comfort letters delivered to the Initial Purchaser in connection with the
initial sale of the Notes to the Initial Purchaser;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchaser and (ii) in the case of a Shelf Registration, furnish
counsel for the Holders of Registrable Securities and counsel for any
underwriters of Registrable Securities copies of any request by the SEC or any
state securities authority for amendments or supplements to a Registration
Statement or Prospectus or for additional information;
(h) use its reasonable best effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement as soon as
practicable and promptly provide notice to each Holder of the withdrawal of
any such order;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities included in the Shelf Registration, without charge, at
least one conformed copy of each Registration Statement and any post-effective
amendments thereto (without documents incorporated or deemed to be
incorporated therein by reference or exhibits thereto, unless requested), if
such documents are not available via the SEC ▇▇▇▇▇ database;
(j) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends other than requiring transfers in
multiples of $1,000; and cause such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and in a form
eligible for deposit with the Depositary and registered in such names as the
selling Holders or the underwriters, if any, may reasonably request in writing
at least two business days prior to the closing of any sale of Registrable
Securities pursuant to such Shelf Registration;
(k) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts as contemplated by Section 3(e)(vi)
hereof, use its reasonable best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or 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, such Prospectus will not contain at
the time of such delivery any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading. The
Company agrees to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has amended
or supplemented the Prospectus to correct such misstatement or omission or,
alternatively, to notify the Holders that no such amendment or supplement is
necessary. At such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, in each case to
correct any misstatement of a material fact or to include any omitted material
fact, the Company agrees promptly to notify each Holder of such determination
and to furnish each Holder such number of copies of the Prospectus, as amended
or supplemented, as such Holder may reasonably request;
(l) obtain CUSIP numbers for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed or word-processed
certificates for the Exchange Securities or Registrable Securities, as the
case may be, in a form eligible for deposit with the Depositary;
(m) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the Trustee and the
Holders to effect such changes, if any, to the Indenture as may be required
for the Indenture to be so qualified in accordance with the terms of the TIA
and (iii) execute, and use its reasonable best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, if any, 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;
(n) in the case of a Shelf Registration, the Holders of a majority in
principal amount of the Registrable Securities registered pursuant to such
Shelf Registration Statement shall have the right to direct the Company to
effect not more than one underwritten registration and, in connection with
such underwritten registration, the Company shall enter into agreements
(including underwriting agreements or similar agreements) and take all other
customary and appropriate actions (including those reasonably requested by the
Holders of a majority in principal amount of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities and in such a manner that is reasonable and customary:
(i) make representations and warranties to the Holders of
such Registrable Securities and the underwriters in such form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings as may be reasonably
requested by such Holders and the managing underwriter(s);
(ii) obtain opinions of counsel to the Company (which
counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriter(s), and the
Holders of a majority in principal amount of the Registrable
Securities being sold) addressed to each selling Holder and the
underwriters, covering the matters customarily covered in opinions
requested in sales of debt securities or underwritten offerings of
debt securities and such other matters as may be reasonably requested
by such Holders and the managing underwriter(s) (it being agreed that
the matters to be covered by such opinion may be subject to customary
qualifications and exceptions);
(iii) obtain "cold comfort" letters and updates thereof with
respect to such Shelf Registration Statement and the Prospectus
included therein, all amendments and supplements thereto and all
documents incorporated or deemed to be incorporated by reference
therein from the Company's independent certified public accountants
and from the independent certified public accountants for any other
Person or any business or assets whose financial statements are
included or incorporated by reference in the Shelf Registration
Statement, each addressed to the underwriters, and to the extent
permitted by SAS 72 to have such letters addressed to the selling
Holders of Registrable Securities, such letters to be in customary
form to the extent permitted by SAS 72 (or if such a comfort letter
is not permitted, an agreed upon procedures letter in customary form)
and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with similar
underwritten offerings and such letters to be delivered at the time
of the pricing of such underwritten registration with an update to
such letter to be delivered at the time of closing of such
underwritten registration;
(iv) if an underwriting agreement or other similar agreement
is entered into, cause the same to set forth indemnification and
contributions provisions and procedures substantially equivalent to
the indemnification and contributions provisions and procedures set
forth in Section 5 hereof with respect to the underwriters and all
other parties to be indemnified pursuant to Section 5 hereof or such
other indemnification and contributions as shall be satisfactory to
the Company, the managing underwriter(s) and the Holders of the
majority in principal amount of the Registrable Securities being
sold; and
(v) deliver such other documents and certificates as may be
reasonably requested and as are customarily delivered in similar
underwritten offerings of debt securities.
The documents referred to in Sections 3(n)(ii) and 3(n)(v) shall be delivered
at the closing under any underwriting or similar agreement as and to the
extent required thereunder. In the case of any such underwritten offering, the
Company shall provide written notice to the Holders of all Registrable
Securities of such underwritten offering at least 30 days prior to the filing
of a prospectus supplement for such underwritten offering. Such notice shall
(x) offer each such Holder the right to participate in such underwritten
offering, (y) specify a date, which shall be no earlier than 15 days following
the date of such notice, by which such Holder must inform the Company of its
intent to participate in such underwritten offering and (z) include the
instructions such Holder must follow in order to participate in such
underwritten offering;
(o) in the case of a Shelf Registration, make available for
inspection by representatives of the Holders of the Registrable Securities and
any underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant retained by such Holders
or underwriters (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial statements and
other records and documents of the Company reasonably necessary to enable such
persons to exercise any applicable due diligence responsibilities
(collectively, the "Records"), and cause the respective officers, directors,
employees, and any other agents of the Company to supply all information
reasonably requested by any such Persons in connection with a Shelf
Registration Statement; provided, however, that the foregoing inspection and
information gathering shall, to the greatest extent possible, be coordinated
on behalf of the Initial Purchaser and on behalf of the other parties by one
counsel designated by the Majority Holders. Records which the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless
(i) the disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement or is otherwise
required by law, (ii) the release of such Records is ordered pursuant to a
subpoena or other order from a court of competent jurisdiction or is necessary
in connection with any action, suit or proceeding, (iii) the information in
such Records has been made generally available to the public or (iv) the
information in such Records becomes available to any such person from a source
other than the Company and such source is not bound by a confidentiality
agreement. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree in writing that
information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such is made
generally available to the public. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to
further agree in writing that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company at its expense to undertake appropriate action
to prevent disclosure of the Records deemed confidential;
(p) (i) in the case of an Exchange Offer, a reasonable time prior to
the filing of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer Registration
Statement or amendment or supplement to such Prospectus, provide copies of
such documents to the Initial Purchaser, and make such changes in any such
documents prior to the filing thereof as the Initial Purchaser or its counsel
may reasonably request; (ii) in the case of a Shelf Registration, a reasonable
time prior to filing any Shelf Registration Statement, any Prospectus forming
a part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such document to
the Holders of Registrable Securities, to the Initial Purchaser, to the
underwriter or underwriters, of an underwritten offering of Registrable
Securities, and to counsel for any such Holders, Initial Purchaser or
underwriters, and make such changes in any such document prior to the filing
thereof as the Holders of Registrable Securities, the Initial Purchaser, any
such underwriter or underwriters or any of their respective counsel may
reasonably request; and (iii) cause the representatives of the Company to be
available for discussion of such documents as shall be reasonably requested by
the Holders of Registrable Securities, the Initial Purchaser on behalf of such
Holders or the underwriters, and shall not at any time make any filing of any
such document of which such Holders, the Initial Purchaser on behalf of such
Holders, their counsel or any underwriter shall not have previously been
advised and furnished a copy or to which such Holders, the Initial Purchaser
on behalf of such Holders, their counsel or any underwriter shall reasonably
object within a reasonable time period;
(q) in the case of a Shelf Registration, use its reasonable best
efforts to cause the Registrable Securities to be rated with the appropriate
rating agencies, if so requested by the Majority Holders or by the
underwriters of an underwritten offering, unless the Registrable Securities
are already so rated;
(r) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC and, with respect to each
Registration Statement and each post-effective amendment, if any, thereto and
each filing by the Company of an Annual Report on Form 10-K, make available to
its security holders, as soon as reasonably practicable, an earnings statement
covering at least twelve months which shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 thereunder (or any similar rule promulgated
thereunder);
(s) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter and its counsel; and
(t) in the case of a Shelf Registration, use its reasonable best
efforts to cause all Registrable Securities to be listed on any securities
exchange or quotation system on which similar debt securities issued by the
Company are then listed if requested by the Majority Holders or by the
underwriters of an underwritten offering of Registrable Securities, if any.
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require
each Holder of Registrable Securities to furnish to the Company such
information regarding such Holder and the proposed distribution by such Holder
of such Registrable Securities as the Company may from time to time reasonably
request in writing and require such Holder to agree in writing to be bound by
all provisions of this Agreement applicable to such Holder. The Company shall
have no obligation to register under the 1933 Act the Registrable Securities
of a seller until such seller furnishes such information. Each Holder as to
which any Shelf Registration is being effected agrees to furnish to the
Company all information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not materially
misleading.
In the case of a Shelf Registration Statement, each Holder agrees
and, in the event that any Participating Broker-Dealer is using the Prospectus
included in the Exchange Offer Registration Statement in connection with the
sale of Exchange Securities pursuant to Section 3(f), each such Participating
Broker-Dealer agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts of the kind described in
Section 3(e)(ii), 3(e)(iii) or 3(e)(v) through 3(e)(vii) hereof, such Holder
or Participating Broker-Dealer, as the case may be, will forthwith discontinue
disposition of Registrable Securities pursuant to a Registration Statement
until receipt by such Holder or Participating Broker-Dealer, as the case may
be, of (i) the copies of the supplemented or amended Prospectus contemplated
by Section 3(k) hereof or (ii) written notice from the Company that the Shelf
Registration Statement or the Exchange Offer Registration Statement,
respectively, are once again effective or that no supplement or amendment is
required. If so directed by the Company, such Holder or Participating
Broker-Dealer, as the case may be, will deliver to the Company (at the
Company's expense) all copies in its possession, other than permanent file
copies then in its possession, of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice. Nothing in this
paragraph shall prevent the accrual of Additional Interest on any Notes or
Exchange Securities.
If the Company shall give any such notice to suspend the disposition
of Registrable Securities pursuant to the immediately preceding paragraph, the
Company shall use its reasonable best efforts to file and have declared
effective (if an amendment) as soon as practicable thereafter an amendment or
supplement to the Shelf Registration Statement or the Exchange Offer
Registration Statement or both, as the case may be, or the Prospectus included
therein and shall extend the period during which the Shelf Registration
Statement or the Exchange Offer Registration Statement or both, as the case
may be, shall be maintained effective pursuant to this Agreement (and, if
applicable, the period during which Participating Broker-Dealers may use the
Prospectus included in the Exchange Offer Registration Statement pursuant to
Section 3(f) hereof) by the number of days during the period from and
including the date of the giving of such notice to and including the earlier
of the date when the Holders or Participating Broker-Dealers, respectively,
shall have received copies of the supplemented or amended Prospectus necessary
to resume such dispositions and the effective date of written notice from the
Company to the Holders or Participating Broker-Dealers, respectively, that the
Shelf Registration Statement or the Exchange Offer Registration Statement,
respectively, are once again effective or that no supplement or amendment is
required.
4. Underwritten Registrations. If any of the Registrable Securities
covered by any Shelf Registration are to be sold in an underwritten offering,
the investment banker or investment bankers and manager or managers that will
manage the offering will be selected by the Majority Holders, subject to the
consent of the Company, which consent shall not be unreasonably withheld.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchaser, each Holder, each Participating Broker-Dealer, each underwriter who
participates in an offering of Registrable Securities (each, an
"Underwriter"), and each Person, if any, who controls the Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 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 any
Registration Statement (and any amendment thereto) pursuant to which
Exchange Securities or Registrable Securities were registered under
the 1933 Act, including all documents incorporated therein by
reference, or any omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading, or arising out of any untrue
statement or alleged untrue statement of a material fact contained in
any preliminary prospectus or Prospectus (and any amendment thereto)
or any 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 any such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of one counsel chosen by any
indemnified party), 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
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement 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 Company by
the Initial Purchaser, any Holder, Participating Broker-Dealer or Underwriter
with respect to such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter expressly for use in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) or made in
reliance upon the Statements of Eligibility and Qualification of Trustees
(Form T-1) under the 1939 Act filed as exhibits to the Registration Statement;
provided, further, that this indemnity agreement with respect to any
Prospectus shall not inure to the benefit of the Initial Purchaser, or any
Holder, Participating Broker-Dealer or Underwriter, with respect to a person
asserting any such losses, liabilities, claims, damages or expenses in
connection with Registrable Securities purchased by such person from such
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter to the
extent that such losses, liabilities, claims, damages or expenses result from
the fact that a copy of the final Prospectus (as then amended or supplemented)
was not sent or given by or on behalf of such Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter to such person at or prior to the
written confirmation of the sale of the Registrable Securities to such person,
if the Company shall have previously furnished to such Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter, on a timely basis in
accordance with this Agreement, sufficient copies of the final Prospectus and
any amendments or supplements thereto and the final Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such losses,
liabilities, claims, damages or expenses.
(b) The Initial Purchaser, each Holder, each Participating
Broker-Dealer and each Underwriter severally but not jointly, agrees to
indemnify and hold harmless the Company, each director and officer of the
Company, the Initial Purchaser, selling Holder, Participating Broker-Dealer
and Underwriter, and each Person, if any, who controls the Company or the
Initial Purchaser, other selling Holder, Participating Broker-Dealer or
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 5(a) hereof, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in any Registration Statement (or any amendment
thereto) pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act or any Prospectus included therein (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information with respect to such Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter furnished to the Company by such
Initial Purchaser, Holder, Participating Broker-Dealer, or Underwriter,
respectively, expressly for use in the Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter shall be liable for any claims
hereunder in excess of the amount of net proceeds received by such Initial
Purchaser, Holder, Participating Broker-Dealer or Underwriter from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure
so to 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 this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of 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
the 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, unless (i) the indemnifying party does not promptly retain
counsel reasonably satisfactory to the indemnified party, or (ii) the
indemnifying party has authorized the employment of counsel at the expense of
the indemnifying party. 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 5 (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) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this Section 5
is for any reason unavailable to or insufficient 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 proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations. The relative fault of such indemnifying party or
parties on the one hand and the indemnified party or parties on the other hand
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such indemnifying
party or parties or such indemnified party or parties, and the parties'
relative intent, knowledge, access to information and opportunity to correct
or prevent such statement or omission.
(e) The Company, the Initial Purchaser, the Holders, the
Participating Broker-Dealers and the Underwriters agree that it would not be
just or equitable if contribution pursuant to this Section 5 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 5 shall
be deemed to include any legal or other 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 5, no Initial Purchaser,
Holder, Participating Broker-Dealer or Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which Registrable Securities sold by it were offered exceeds the amount of any
damages that such Initial Purchaser, Holder, Participating Broker-Dealer or
Underwriter has otherwise been required to pay by reason of any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 5, each Person, if any, who controls the
Initial Purchaser, Holder, Participating Broker-Dealer or Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as such Initial Purchaser, Holder,
Participating Broker-Dealer or Underwriter, as the case may be, and each
director and officer of the Company who signed the Registration Statement and
each Person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company. The respective obligations of the Initial
Purchaser, Holders, Participating Broker-Dealers and Underwriters to
contribute pursuant to this Section 5 are several in proportion to the
principal amount of Notes purchased by them and not joint.
The indemnity and contribution provisions contained in this Section 5
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
the Initial Purchaser, Holder, Participating Broker-Dealer, Underwriter, or
any Person controlling the Initial Purchaser, Holder, Participating
Broker-Dealer or Underwriter, or by or on behalf of the Company, its officers
or directors or any Person controlling the Company, (iii) acceptance of any of
the Exchange Securities and (iv) any sale of Registrable Securities or
Exchange Securities pursuant to a Shelf Registration Statement.
6. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the 1934 Act and any
Registrable Securities remain outstanding, the Company covenants that it will
file all reports required to be filed by it under Section 13(a) or 15(d) of
the 1934 Act and the rules and regulations adopted by the SEC thereunder, that
if it ceases to be so required to file such reports, it will upon the request
of any Holder or beneficial owner of Registrable Securities (i) make publicly
available such information (including, without limitation, the information
specified in Rule 144(c)(2) under the ▇▇▇▇ ▇▇▇) as is necessary to permit
sales pursuant to Rule 144 under the 1933 Act, (ii) deliver or cause to be
delivered, promptly following a request by any Holder or beneficial owner of
Registrable Securities or any prospective purchaser or transferee designated
by such Holder or beneficial owner, such information (including, without
limitation, the information specified in Rule 144A(d)(4) under the ▇▇▇▇ ▇▇▇)
as is necessary to permit sales pursuant to Rule 144A under the 1933 Act, and
(iii) take such further action that is reasonable in the circumstances, in
each case to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the 1933 Act within
the limitation of the exemptions provided by (x) Rule 144 under the 1933 Act,
as such Rule may be amended from time to time, (y) Rule 144A under the 1933
Act, as such Rule may be amended from time to time, or (z) any similar rules
or regulations hereafter adopted by the SEC. Upon the request of any Holder or
beneficial owner of Registrable Securities, the Company will deliver to such
Holder or beneficial owner a written statement as to whether it has complied
with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof, without the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Registrable
Securities.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure. It shall not be necessary for the consent of
the Holders under this Section to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the substance
thereof.
Notwithstanding the foregoing sentence, (i) this Agreement may be
amended, without the consent of any Holder of Registrable Securities, by
written agreement signed by the Company and the Initial Purchaser, to cure any
ambiguity, correct or supplement any provision of this Agreement that may be
inconsistent with any other provision of this Agreement or to make any other
provision with respect to matters or questions arising under this Agreement
which shall not be inconsistent with other provisions of this Agreement, (ii)
this Agreement may be amended, modified or supplemented, and waivers and
consents to departures from the provisions hereof may be given, by written
agreement signed by the Company and the Initial Purchaser to the extent that
any such amendment, modification, supplement, waiver or consent is, in the
reasonable judgment of both the Company and the Initial Purchaser, necessary
or appropriate to comply with applicable law (including any interpretation of
the Staff of the SEC) or any change therein and (iii) to the extent any
provision of this Agreement relates to the Initial Purchaser, such provision
may be amended, modified or supplemented, and waivers or consents to
departures from such provisions may be give, by written agreement signed by
the Initial Purchaser and the Company. Each Holder of Registrable Securities
shall be bound by any amendment or waiver effected pursuant to this Section
6(c), whether or not any notice, writing or marking indicating such amendment
or waiver appears on such security or is delivered to such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telecopier, or any courier guaranteeing overnight delivery
(i) if to a Holder or Participating Broker-Dealer (other than the Initial
Purchaser), at the most current address set forth on the records of the
registrar under the Indenture; (ii) if to the Initial Purchaser, at the most
current address given by the Initial Purchaser to the Company by means of a
notice given in accordance with the provisions of this Section 6(d), which
address initially is the address set forth in the Purchase Agreement; (iii) if
to the Company, initially at the address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(d); and (iv) if to any underwriter, at
the most current address given by such underwriter to the Company by means of
a notice given in accordance with the provisions of this Section 6(d), which
address initially shall be the address set forth in the applicable
underwriting agreement.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, first class, postage prepaid, if
mailed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to a courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(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 limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed
to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms hereof or of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder, Participating Broker-Dealer
and Underwriter shall be a third party beneficiary of the agreements made
hereunder between the Company, on the one hand, and the Initial Purchaser, on
the other hand, and shall have the right to enforce such agreements directly
to the extent it deems such enforcement necessary or advisable to protect its
rights or the rights of other Holders hereunder. Each Holder, by its
acquisition of Notes, shall be deemed to have agreed to the provisions of
Section 5(b) hereof.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Restriction on Resales. If (i) the Company or any of its
subsidiaries or affiliates (as defined in Rule 144 under the ▇▇▇▇ ▇▇▇) shall
redeem, purchase or otherwise acquire any Registrable Security or any Exchange
Security which is a "restricted security" within the meaning of Rule 144 under
the 1933 Act, neither the Company nor any of its subsidiaries or affiliates
will resell such Registrable Security or Exchange Security or issue any new
Security or Exchange Security to replace the same.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability
of any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
SELECTIVE INSURANCE GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President,
Chief Financial Officer
This Registration Rights Agreement is confirmed and accepted as of the date
first above written by the undersigned for the Initial Purchaser.
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
ANNEX A
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account under
the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of those notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer for
resales of new notes received in exchange for original notes that had been
acquired as a result of market-making or other trading activities. We have
agreed that, for a period of 180 days after the expiration date of the
exchange offer, we will make this prospectus, as it may be amended or
supplemented, available to any broker-dealer for use in connection with any
such resale. Any broker-dealers required to use this prospectus and any
amendments or supplements to this prospectus for resales of the new notes must
notify us of this fact by checking the box on the letter of transmittal
requesting additional copies of these documents.
Notwithstanding the foregoing, we are entitled under the registration
rights agreement to suspend the use of this prospectus by broker-dealers under
specified circumstances. For example, we may suspend the use of this
prospectus if:
o the SEC or any state securities authority requests an amendment or
supplement to this prospectus or the related registration statement or
additional information;
o the SEC or any state securities authority issues any stop order
suspending the effectiveness of the registration statement or initiates
proceedings for that purpose;
o we receive notification of the suspension of the qualification of the new
notes for sale in any jurisdiction or the initiation or threatening of
any proceeding for that purpose;
o the suspension is required by law; or
o an event occurs which makes any statement in this prospectus untrue in
any material respect or which constitutes an omission to state a material
fact in this prospectus.
If we suspend the use of this prospectus, the 180-day period referred
to above will be extended by a number of days equal to the period of the
suspension.
We will not receive any proceeds from any sale of new notes by
broker-dealers. New notes received by broker-dealers for their own account
under the exchange offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on those notes or a combination of those
methods, at market prices prevailing at the time of resale, at prices related
to prevailing market prices or at negotiated prices. Any resales may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from the selling
broker-dealer or the purchasers of the new notes. Any broker-dealer that
resells new notes received by it for its own account under the exchange offer
and any broker or dealer that participates in a distribution of the new notes
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit on any resale of new notes and any commissions or concessions
received by these persons may be deemed to be underwriting compensation under
the Securities Act. The letter of transmittal states that, by acknowledging
that it will deliver and by delivering a prospectus, a broker-dealer will not
be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
We have agreed to pay all expenses incidental to the exchange offer
other than commissions and concessions of any broker or dealer and will
indemnify holders of the notes, including any broker-dealers, against certain
liabilities, including liabilities under the Securities Act.