LEUCADIA NATIONAL CORPORATION
$200,000,000 7% Senior Notes due 2013
REGISTRATION RIGHTS AGREEMENT
June 5, 2003
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Leucadia National Corporation, a New York corporation (the "Company"),
is issuing and selling to ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "Initial Purchaser"),
upon the terms set forth in a purchase agreement, dated as of May 29, 2003 (the
"Purchase Agreement"), $200,000,000 aggregate principal amount at maturity of
the Company's 7% Senior Notes due 2013. As an inducement to the Initial
Purchaser to enter into the Purchase Agreement, the Company agrees with the
Initial Purchaser, for the benefit of the holders of the Securities (as defined
below) (including, without limitation, the Initial Purchaser), as follows:
1. Definitions.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
Advice: See the last paragraph of Section 5.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2(f).
Business Day: Any day, other than a Saturday, a Sunday or a day on
which banking institutions in the City of New York or at a place of payment are
authorized or obligated by law, regulation or executive order to be closed.
Closing Date: June 5, 2003.
controlling person: See Section 7(a).
DTC: See Section 5(i).
Effectiveness Date: The 180th day following the Closing Date.
Effectiveness Period: See Section 3(a).
Event: See Section 4(a).
Event Date: See Section 4(a).
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See Section 2(a).
Exchange Securities: The 7% Senior Notes due 2013 of the Company,
identical in all respects to the Notes, except for restrictive legends, to be
issued under the Indenture.
Filing Date: The 120th day following the Closing Date.
Holder: Each holder of Registrable Securities.
Holder Indemnified Parties: See Section 7(a).
indemnified party: See Section 7(c).
indemnifying parties: See Section 7(c).
Indenture: The Indenture, dated as of the date hereof, between the
Company and JPMorgan Chase Bank, as trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time, in accordance with
the terms thereof.
Initial Shelf Registration: See Section 3(a).
Losses: See Section 7(a).
Maximum Contribution Amount: See Section 7(d).
NASD: The National Association of Securities Dealers, Inc.
Participating Broker-Dealer: See Section 2(f).
Person: An individual, trustee, corporation, limited liability
company, partnership, limited liability partnership, joint stock company, joint
venture, trust, unincorporated organization or association, government or any
agency or political subdivision thereof, union, business association, firm or
other entity.
Private Exchange: See Section 2(g).
Private Exchange Securities: See Section 2(g).
Prospectus: The prospectus included in a Registration Statement at the
time that such Registration Statement is declared effective (including, without
limitation, a prospectus that
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discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Securities
Act), as amended or supplemented by any prospectus supplement with respect to
the terms of the offering of any portion of the Securities covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Registrable Securities: Any of the Notes, the Private Exchange
Securities and the Exchange Securities received in the Exchange Offer that may
not be sold without restriction under federal or state securities law.
Registration Statement: Any registration statement of the Company that
covers any of the Securities and that is filed pursuant to the provisions of
this Agreement, including the Prospectus included therein, all amendments and
supplements to such registration statement and Prospectus (including
post-effective amendments), all exhibits thereto and all material incorporated
by reference or deemed to be incorporated by reference therein.
Rule 144: Rule 144 under the Securities Act, as such rule may be
amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 under the Securities Act, as such rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Effectiveness Date: With respect to a Shelf Registration, the
90th day after the filing of such Shelf Registration.
Shelf Filing Date: With respect to a Shelf Registration, the 30th day
following (i) in the case of an Initial Shelf Registration, delivery of the
Shelf Notice triggering the obligation to file such Initial Shelf Registration,
and (ii) in the case of a Subsequent Shelf Registration, the cessation of
effectiveness of the prior Shelf Registration.
Shelf Notice: See Section 2(i).
Shelf Registration: The Initial Shelf Registration and any Subsequent
Shelf Registration.
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Special Counsel: Counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if any, the trustee
under any indenture governing the Exchange Securities or the Private Exchange
Securities.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
Weekly Liquidated Damages Amount: With respect to any Event, an amount
per week per $1,000 principal amount of Registrable Securities equal to $0.05
for the first 90-day period immediately following the applicable Event Date,
increasing by an additional $0.05 per week per $1,000 principal amount of
Registrable Securities with respect to each subsequent 90-day period, up to a
maximum amount of $0.25 per week per $1,000 principal amount of Registrable
Securities.
2. Exchange Offer.
(a) The Company shall:
(i) prepare and file with the SEC promptly after the date hereof, but
in no event later than the Filing Date, a registration statement (the
"Exchange Offer Registration Statement") on an appropriate form under the
Securities Act with respect to a proposed offer (the "Exchange Offer") to
the Holders to issue and deliver to such Holders, in exchange for the
Notes, a like aggregate principal amount of Exchange Securities;
(ii) use its reasonable best efforts to cause the Exchange Offer
Registration Statement to become effective as promptly as practicable after
the filing thereof, but in no event later than the Effectiveness Date;
(iii) use its reasonable best efforts to keep the Exchange Offer
Registration Statement effective until the consummation of the Exchange
Offer pursuant to its terms; and
(iv) unless the Exchange Offer would not be permitted by a policy of
the SEC, commence the Exchange Offer and use its reasonable best efforts
to, on or prior to 45 days after the Exchange Offer Registration Statement
is declared effective, consummate the Exchange Offer and issue Exchange
Securities in exchange for all Notes tendered prior thereto in the Exchange
Offer.
The Exchange Offer shall not be subject to any conditions, other than
that the Exchange Offer does not violate Applicable Law or any applicable
interpretation of the staff of the SEC. The term "Applicable Law" means any
federal, state, local or foreign statute, law
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(including, without limitation, common law) or ordinance, or judgment, decree,
rule, regulation or order of any federal, state local or other governmental
authority, governmental or regulatory agency or body, court, arbitrator or
self-regulatory organization, domestic or foreign.
(b) The Exchange Securities shall be issued under, and entitled to the
benefits of, the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA).
(c) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal that is an exhibit to the Exchange Offer Registration
Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 30 days after the
date notice thereof is mailed to the Holders (or longer if required by
Applicable Law);
(iii) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which the
Exchange Offer shall remain open; and
(v) otherwise comply with all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Notes, Exchange Securities equal in aggregate principal amount to
the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and each Private Exchange Security
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from the date of original issue of the Notes. Each Exchange Security
and each Private Exchange Security shall bear interest at the rate set forth
thereon; provided, that interest with respect to the period prior to the
issuance thereof shall accrue at the rate or rates borne by the Notes
surrendered in exchange therefor from time to time during such period.
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(f) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
containing a summary statement of the positions taken or policies made by the
staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution"
section shall also allow the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act, including (without
limitation) all Participating Brokers-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Securities. The Company shall use its reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective and to amend
and supplement the Prospectus to be lawfully delivered by all Persons subject to
the prospectus delivery requirement of the Securities Act for the shorter of (i)
such period of time as such Persons must comply with such requirements in order
to resell the Exchange Securities and (ii) the period ending when all
Registrable Securities covered by the Exchange Offer Registration Statement have
been sold pursuant thereto (the "Applicable Period").
(g) If, prior to consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status as an unsold allotment in
the initial distribution of the Notes, the Company shall, upon the request of
the Initial Purchaser, simultaneously with the delivery of the Exchange
Securities in the Exchange Offer, issue (pursuant to the same indenture as the
Exchange Securities and subject to transfer restrictions thereon) and deliver to
the Initial Purchaser, in exchange for the Notes held by the Initial Purchaser
(the "Private Exchange"), a like principal amount of debt securities of the
Company that are identical to the Exchange Securities (the "Private Exchange
Securities"). The Private Exchange Securities shall bear the same CUSIP number
as the Exchange Securities.
(h) The Company may require each Holder participating in the Exchange Offer
to represent to the Company that, at the time of the consummation of the
Exchange Offer: (i) any Exchange Securities received by such Holder in the
Exchange Offer will be acquired in the ordinary course of its business; (ii)
such Holder will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Securities within the meaning of
the Securities Act or resale of the Exchange Securities in violation of the
Securities Act; (iii) if such Holder is not a broker-dealer, that it is not
engaged in and does not intend to engage in, the distribution of the Exchange
Securities; (iv) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, that it will deliver a
prospectus, as required by law, in connection with any resale of such Exchange
Securities; and (v) if such Holder is an affiliate of the Company, that it will
comply with the registration and prospectus delivery requirements of the
Securities Act applicable to it.
(i) If: (i) prior to the consummation of the Exchange Offer, the Company or
the Holders of a majority in aggregate principal amount of Registrable
Securities determines in its or their reasonable judgment that (A) the Exchange
Securities would not, upon receipt, be tradeable by the Holders thereof without
restriction under the Securities Act and the Exchange Act and without material
restrictions under applicable Blue Sky or state securities laws or (B) the
interests of the Holders under this Agreement, taken as a whole, would be
materially adversely
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affected by the consummation of the Exchange Offer; (ii) applicable
interpretations of the staff of the SEC would not permit the consummation of the
Exchange Offer; (iii) subsequent to the consummation of the Private Exchange,
any Holder of Private Exchange Securities so requests; (iv) the Exchange Offer
is not consummated within 225 days of the Closing Date for any reason; or (v) in
the case of (A) any Holder prohibited by law or SEC policy from participating in
the Exchange Offer, (B) any Holder participating in the Exchange Offer that
receives Exchange Securities that may not be sold without restriction under
state and federal securities laws (other than due solely to the status of such
Holder as an affiliate of the Company within the meaning of the Securities Act)
or (C) any broker-dealer that holds Notes acquired directly from the Company or
any of their respective affiliates and, in each such case contemplated by this
clause (v), such Holder notifies the Company within 20 Business Days (provided
that if a Holder has delivered a notice within such time period, any other
Holder meeting the requirements set forth in clause (v)(A), (B) or (C) may
thereafter submit a notice up to and including the date that is 20 Business Days
following the Shelf Filing Date) following consummation of the Exchange Offer,
then the Company shall promptly (and in any event within five Business Days)
deliver to the Holders (or in the case of an occurrence of any event described
in clause (v) of this Section 2(i), to any such Holder) and the Trustee notice
thereof (the "Shelf Notice") and shall as promptly as possible thereafter (but
in no event later than the Shelf Filing Date) file an Initial Shelf Registration
pursuant to Section 3; provided, that no Holder (other than the Initial
Purchaser) shall be entitled to have Securities held by it covered by such Shelf
Registration unless such ▇▇▇▇▇▇ agrees to be bound by all of the provisions of
this Agreement applicable to such Holder.
3. Shelf Registration.
If a Shelf Notice is required to be delivered pursuant to clause (i),
(ii), (iii) or (iv) of Section 2(i), then this Section 3 shall apply to all
Registrable Securities. Otherwise, upon consummation of the Exchange Offer in
accordance with Section 2, the provisions of this Section 3 shall apply solely
with respect to (i) Notes held by any Holder thereof not permitted to
participate in the Exchange Offer, (ii) Notes held by any broker-dealer that
acquired such Notes directly from the Company or any of their respective
affiliates, and (iii) Exchange Securities that are not freely tradeable, in each
case, as contemplated by clause (v) of Section 2(i).
(a) Initial Shelf Registration. The Company shall prepare and file with the
SEC a Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Securities (the "Initial
Shelf Registration") subject to the Company's right pursuant to Section 3(c) to
exclude the Registrable Securities of Holders that have not provided the
information required to be furnished by such Holders pursuant to Section 3(c)
hereof. The Company shall file with the SEC the Initial Shelf Registration as
promptly as possible following the occurrence of the event described in Section
2(i) which triggered such filing obligation, but in no event later than the
Shelf Filing Date. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable Securities
for resale by such Holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The Company
(i) shall not permit any securities other than the Registrable Securities to be
included in any Shelf Registration, and (ii) shall use its reasonable best
efforts to cause the Initial Shelf Registration to be declared effective under
the Securities Act as promptly as practicable after the filing thereof (but in
no event later than the Shelf Effectiveness Date) and to keep the Initial Shelf
Registration continuously
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effective under the Securities Act until the date that is 24 months after the
date it is declared effective (subject to extension pursuant to the last
paragraph of Section 5) (the "Effectiveness Period"), or such shorter period
ending when (i) all Registrable Securities covered by the Initial Shelf
Registration have been sold in the manner set forth and as contemplated in the
Initial Shelf Registration, (ii) a Subsequent Shelf Registration covering all of
the Registrable Securities has been declared effective under the Securities Act,
(iii) such Registrable Securities are eligible for resale pursuant to Rule
144(k) under the Securities Act or (iv) there ceases to be any outstanding
Registrable Securities.
(b) Subsequent Shelf Registrations. If any Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the Registrable Securities registered thereunder),
the Company shall use its reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness file an amendment to the
Shelf Registration in a manner reasonably expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company shall use its reasonable best efforts to
cause the Subsequent Shelf Registration to be declared effective as promptly as
practicable after such filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration, and any previously filed Subsequent Shelf Registration, was
previously effective.
(c) Provision of Information. The Company may exclude from any Shelf
Registration the Registrable Securities of any Holder who, without a reasonable
basis, fails to furnish to the Company in writing, within 20 days after receipt
of a written request therefor, the information specified in Item 507 or 508, as
applicable, of Regulation S-K under the Securities Act for use in connection
with any Shelf Registration or Prospectus or preliminary prospectus included
therein. No such Holder shall be entitled to liquidated damages pursuant to
Section 4 unless and until such Holder shall have provided such information.
Each Holder whose Registrable Securities are to be included in a Shelf
Registration Statement agrees to promptly furnish to the Company all additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
4. Liquidated Damages.
(a) The Company acknowledges and agrees that the Holders will suffer
damages, and that it would not be feasible to ascertain the extent of such
damages with precision, if the Company fails to fulfill its obligations
hereunder. Accordingly, in the event of such failure, the Company agrees to pay
liquidated damages to each Holder under the circumstances and to the extent set
forth below:
(i) if the Exchange Offer Registration Statement has not been filed
with the SEC on or prior to the Filing Date;
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(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the Effectiveness Date; or
(iii) if the Company has not exchanged Exchange Securities for all
Notes validly tendered in accordance with the terms of the Exchange Offer
within 45 days after the date on which the Exchange Offer Registration
Statement is declared effective by the SEC;
(iv) if obligated to file an Initial Shelf Registration and the
Company fails to file such Initial Shelf Registration with the SEC on or
prior to Shelf Filing Date;
(v) if an Initial Shelf Registration is filed and such Initial Shelf
Registration is not declared effective on or prior to the Shelf
Effectiveness Date; or
(vi) if a Shelf Registration is filed and declared effective by the
SEC but thereafter ceases to be effective without being succeeded within 30
days by a Subsequent Shelf Registration filed and declared effective;
(each of the foregoing an "Event," and the date on which the Event occurs being
referred to herein as an "Event Date").
Upon the occurrence of any Event, the Company shall pay, or cause to
be paid, in addition to amounts otherwise due under the Indenture and the
Registrable Securities, as liquidated damages, and not as a penalty, to each
Holder for each weekly period beginning on the Event Date an amount equal to the
Weekly Liquidated Damages Amount per $1,000 principal amount of Registrable
Securities held by such Holder; provided, that such liquidated damages will, in
each case, cease to accrue (subject to the occurrence of another Event) on the
date on which all Events have been cured. An Event under clause (i) above shall
be cured on the date that the Exchange Offer Registration Statement (or, if an
Initial Shelf Registration is required to be filed pursuant to clause (i), (ii)
or (iii) of Section 2(i), the date that such Initial Shelf Registration) is
filed with the SEC; an Event under clause (ii) above shall be cured on the date
that the Exchange Offer Registration Statement (or, if an Initial Shelf
Registration is required to be filed pursuant to clause (i), (ii) or (iii) of
Section 2(i), the date that such Initial Shelf Registration) is declared
effective by the SEC; an Event under clause (iii) above shall be cured on the
earlier of the date (A) the Exchange Offer is consummated with respect to all
Notes validly tendered or (B) the Company delivers a Shelf Notice to the Holders
and the Trustee pursuant to clause (i), (ii) or (iii) of Section 2(i); an Event
under clause (iv) above shall be cured on the date that such Initial Shelf
Registration is filed with the SEC; an Event under clause (v) above shall be
cured on the date that such Initial Shelf Registration is declared effective by
the SEC; and an Event under clause (vi) above shall be cured on the earlier of
(1) the date on which the applicable Shelf Registration is no longer subject to
an order suspending the effectiveness thereof or proceedings relating thereto or
(2) a new Subsequent Shelf Registration is declared effective.
(b) The Company shall notify the Trustee within five Business Days after
each Event Date. The Company shall pay the liquidated damages due on the
Registrable Securities by depositing with the Trustee, in trust, for the benefit
of the Holders thereof, by 12:00 noon, New
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York City time, on or before the applicable semi-annual interest payment date
for the Registrable Securities, immediately available funds in sums sufficient
to pay the liquidated damages then due. The liquidated damages amount due shall
be payable in the same manner as interest payments on the Notes on each interest
payment date to the record Holder entitled to receive the interest payment to be
made on such date as set forth in the Indenture.
5. Registration Procedures.
In connection with the registration of any Securities pursuant to
Sections 2 or 3, the Company shall effect such registrations to permit the sale
of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, as soon as practicable after the
date hereof but in any event on or prior to the Filing Date, with respect
to an Exchange Offer Registration Statement, and on or prior to the Shelf
Filing Date, with respect to a Shelf Registration, as prescribed by
Sections 2 and 3, respectively, and use its reasonable best efforts to
cause each such Registration Statement to become effective and remain
continuously effective as provided in this Agreement; provided, that if (i)
such filing is pursuant to Section 3 or (ii) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2 is
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Securities during the Applicable
Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, (A) the Company shall notify the Holders
of the Registrable Securities covered by such Registration Statement, their
Special Counsel, each Participating Broker-Dealer, the managing
underwriters, if any, and their counsel of such filing at least five
Business Days prior to making such filing, (B) if requested, the Company
shall furnish to and afford the Holders of the Registrable Securities
covered by such Registration Statement, their Special Counsel, each
Participating Broker-Dealer, the managing underwriters, if any, and their
counsel a reasonable opportunity to review, and shall make available for
inspection by such Persons, copies of all such documents (including copies
of any documents to be incorporated by reference therein and all exhibits
thereto) proposed to be filed and such financial and other information and
books and records of the Company, as shall be necessary, in the opinion of
Special Counsel and the respective counsels to such Participating
Broker-Dealers and underwriters, to conduct a reasonable due diligence
investigation within the meaning of the Securities Act, and (C) the Company
shall cause the members, managers, officers, directors and employees of the
Company, and counsel and independent certified public accountants of the
Company, to respond to such inquiries, as shall be necessary, in the
opinion of Special Counsel and the respective counsels to such
Participating Broker-Dealers and underwriters, to conduct a reasonable due
diligence investigation within the meaning of the Securities Act. The
Company may require each Holder to agree in writing to keep confidential
any non-public information relating to the Company received by such Holder,
to refrain from using such information as the basis for any market
transactions in the Securities of the Company and not to disclose such
information (other than to an affiliate or prospective purchaser who agrees
in writing to respect the confidentiality provisions of this Section 5(a))
until such information has been made generally available to the public
unless the
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release of such information is required by law or necessary to respond to
inquiries of regulatory authorities. The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto which the Holders must be afforded an opportunity to review prior
to the filing of such document, if the Holders of a majority in aggregate
principal amount of the Registrable Securities covered by such Registration
Statement, their Special Counsel, any Participating Broker-Dealer or the
managing underwriters, if any, or their counsel shall reasonably object to
such filing within five Business Days after receipt of the Company's notice
of filing described above in this Section 5(a). A Holder shall be deemed to
have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein not misleading
or fails to comply with the applicable requirements of the Securities Act.
(b) Provide an indenture trustee for the Registrable Securities or the
Exchange Securities, as the case may be, and cause the Indenture (or other
indenture relating to the Registrable Securities) to be qualified under the
TIA not later than the effective date of the first Registration Statement;
in connection therewith, effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its reasonable best efforts to cause such
trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the
SEC to enable such indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and
post-effective amendments to the Registration Statement as may be necessary
in order to cause the Registration Statement to become effective and to
keep such Registration Statement continuously effective for the time
periods required hereby; cause the related Prospectus to be supplemented by
any Prospectus supplement required by Applicable Law, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provisions
then in force) under the Securities Act, and comply fully with Rules 424,
430A and 462, as applicable, under the Securities Act in a timely manner;
and comply in all material respects with the provisions of the Securities
Act and the Exchange Act applicable thereto with respect to the disposition
of all securities covered by such Registration Statement, as so amended, or
in such Prospectus, as so supplemented, in accordance with the intended
methods of distribution set forth in such Registration Statement, as so
amended, and such Prospectus, as so supplemented.
(d) Furnish to such selling Holders and Participating Broker-Dealers
who so request (i) upon the Company's receipt, a copy of the order of the
SEC declaring such Registration Statement and any post-effective amendment
thereto effective, (ii) such reasonable number of copies of such
Registration Statement and of each amendment and supplement thereto (in
each case including any documents incorporated therein by reference and all
exhibits (including exhibits incorporated by reference) to such
Registration Statement and each such amendment and supplement), (iii) such
reasonable number of copies of the Prospectus included in such Registration
Statement (including each preliminary prospectus and each supplement
thereto), and such reasonable number
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of copies of the final Prospectus as filed by the Company pursuant to Rule
424(b) under the Securities Act, in conformity with the requirements of the
Securities Act, and (iv) such other documents (including any amendments and
supplements required to be filed pursuant to Section 5(c) and any documents
incorporated therein by reference and all exhibits thereto, including
exhibits incorporated by reference), as any such Person may reasonably
request. The Company hereby consents to the use of the Prospectus by each
of the selling Holders of Registrable Securities and by each such
Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and
sale of the Registrable Securities covered by, or the sale by Participating
Broker-Dealers of the Exchange Securities pursuant to, such Prospectus and
any amendment or supplement thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or (B)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, notify the selling Holders of Registrable
Securities, their Special Counsel, each Participating Broker-Dealer and the
managing underwriters, if any, promptly (but in any event within five
Business Days), and, if requested by such Person, confirm such notice in
writing, (i) when a Prospectus or any Prospectus supplement or Registration
Statement or post-effective amendment has been filed, and, with respect to
a Registration Statement or any post-effective amendment, when the same has
become effective under the Securities Act, (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement
or of any order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) if, at any time when
a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Securities, the representations
and warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated by Section 5(n) below cease to be true
and correct in any material respect, (iv) of the receipt by the Company of
any notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
contemplation, initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event that makes any statement made in
such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference to be untrue
in any material respect or that requires the making of any additions to or
changes in such Registration Statement, Prospectus or documents so that it
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which such
statements were made, not misleading, (vi) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement
would be appropriate, and (vii) of any request by the SEC for amendments to
the Registration Statement or supplements to the Prospectus or for
additional information relating thereto.
(f) Use its reasonable best efforts to register or qualify, and, if
applicable, to cooperate with the selling Holders of Registrable
Securities, the underwriters, if any, and
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their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of,
Registrable Securities to be included in a Registration Statement for offer
and sale under the securities or Blue Sky laws of such jurisdictions within
the United States as any selling Holder, Participating Broker-Dealer or the
managing underwriters reasonably request in writing; and, if Securities are
offered other than through an Underwritten Offering, the Company shall
cause its counsel to perform Blue Sky investigations and file registrations
and qualifications required to be filed pursuant to this Section 5(f) at
the expense of the Company; keep each such registration or qualification
(or exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Securities covered by the applicable Registration
Statement; provided, however, that the Company shall not be required to (i)
register or qualify generally to do business in any jurisdiction where it
is not then so qualified, (ii) take any action that would subject it to
general service of process in any jurisdiction where it is not then so
subject or (iii) take any action that would subject it to general taxation
in respect of doing business in any such jurisdiction where it is not then
so subject.
(g) Use its reasonable best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Securities
for sale in any jurisdiction, and, if any such order is issued, use its
best efforts to obtain the withdrawal or lifting of any such order at the
earliest possible time.
(h) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, and if requested by the managing
underwriters, if any, such Participating Broker-Dealer or the Holders of a
majority in aggregate principal amount of the Registrable Securities, (A)
promptly incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, or such Holders
reasonably request to be included therein as required to comply with any
Applicable Law and (B) make all required filings of such Prospectus
supplement or such post-effective amendment as soon as practicable after
the Company has received notification of such matters required by
Applicable Law to be incorporated in such Prospectus supplement or
post-effective amendment.
(i) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, cooperate with the selling Holders, such
Participating Broker-Dealer and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear any
restrictive legends and shall be in a form eligible for deposit with The
Depository Trust Company ("DTC"); and enable such Registrable Securities to
be in such denominations and registered in such names as
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the managing underwriters, if any, such Participating Broker-Dealer or the
Holders may request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii)
a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, upon the occurrence of any event contemplated
by Section 5(e)(v), 5(e)(vi) or 5(e)(vii), as promptly as practicable
prepare a post-effective amendment to the Registration Statement, a
supplement to the related Prospectus or a supplement or amendment to any
such document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities being sold
thereunder or to the purchasers of the Exchange Securities to whom such
Prospectus will be delivered by a Participating Broker-Dealer, such
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading, and, if SEC review is required, use its reasonable
best efforts to cause such post-effective amendment to be declared
effective as soon as practicable.
(k) Use its reasonable best efforts to cause the Securities covered by
a Registration Statement to be rated with the appropriate rating agencies,
if appropriate, and if so requested by the holders of a majority in
aggregate principal amount of Securities covered by such Registration
Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration Statement
relating to the Securities, (i) provide the applicable trustee with printed
certificates for the Securities in a form eligible for deposit with DTC and
(ii) provide a CUSIP number for each of the Securities.
(m) Use its reasonable best efforts to cause all Securities covered by
such Registration Statement to be listed on each securities exchange, if
any, on which similar debt securities issued by the Company are then
listed.
(n) If a Shelf Registration is filed pursuant to Section 3, enter into
such agreements (including an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such
other actions in connection therewith (including those reasonably requested
by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of Registrable Securities being sold) in order
to expedite or facilitate the registration or the disposition of such
Registrable Securities, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the registration
is an Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with respect to the
business of the Company and its subsidiaries, if any, and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, in form, substance and
scope as are customarily made by Company to underwriters in Underwritten
Offerings, and confirm
-14-
the same if and when reasonably requested; (ii) obtain opinions of counsel
to the Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in aggregate principal
amount of the Registrable Securities being sold), addressed to each selling
Holder and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in Underwritten Offerings; (iii)
obtain "cold comfort" letters and updates thereof (which letters and
updates (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters) from the independent certified public
accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters and each selling Holder,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
Underwritten Offerings and such other matters as reasonably requested by
underwriters; and (iv) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in principal amount of
the Registrable Securities being sold and the managing underwriters, if
any, to evidence the continued validity of the representations and
warranties of the Company and its subsidiaries, if any, made pursuant to
clause (i) above and to evidence compliance with any conditions contained
in the underwriting agreement or other similar agreement entered into by
the Company.
(o) Comply with all applicable rules and regulations of the SEC and
make generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing on the first day of the fiscal quarter following each fiscal
quarter in which Registrable Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange, obtain
an opinion of counsel to the Company (in form, scope and substance
reasonably satisfactory to the Initial Purchaser), addressed to all Holders
participating in the Exchange Offer or Private Exchange, as the case may
be, to the effect that (i) the Company has duly authorized, executed and
delivered the Exchange Securities or the Private Exchange Securities, as
the case may be, and the Indenture and (ii) the Exchange Securities or the
Private Exchange Securities, as the case may be, and the Indenture
constitute legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their respective terms, except as
such enforcement may be subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and (B) general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law).
-15-
(q) If an Exchange Offer or Private Exchange is to be consummated,
upon delivery of the Registrable Securities by such Holders to the Company
(or to such other Person as directed by the Company) in exchange for the
Exchange Securities or the Private Exchange Securities, as the case may be,
the Company shall mark, or caused to be marked, on such Registrable
Securities that such Registrable Securities are being cancelled in exchange
for the Exchange Securities or the Private Exchange Securities, as the case
may be, and in no event shall such Registrable Securities be marked as paid
or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the NASD.
(s) Use its reasonable best efforts to take all other steps necessary
to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
Each Holder and each Participating Broker-Dealer agrees by acquisition
of such Registrable Securities or Exchange Securities that, upon receipt of
written notice from the Company of the happening of any event of the kind
described in Section 5(e)(ii), 5(e)(iv), 5(e)(v), 5(e)(vi) or 5(e)(vii), such
Holder will forthwith discontinue disposition (in the jurisdictions specified in
a notice of a 5(e)(iv) event, and elsewhere in a notice of a 5(e)(ii), 5(e)(v),
5(e)(vi) or 5(e)(vii) event) of such Securities covered by such Registration
Statement or Prospectus until the earlier of (i) such Holder's receipt of the
copies of the amended or supplemented Prospectus contemplated by Section 5(j);
or (ii) the time such Holder is advised in writing (the "Advice") by the Company
that offers or sales in a particular jurisdiction may be resumed, or that the
use of the applicable Prospectus may be resumed, as the case may be, and has
received copies of any amendments or supplements thereto. If so directed by the
Company in such notice, each Holder and each Participating Broker-Dealer will
deliver to the Company (at the Company's expense) all copies of the Prospectus
covering such Securities that was current at the time of such ▇▇▇▇▇▇'s or
Participating Broker-Dealer's receipt of such notice. If the Company shall give
such notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of such
Securities covered by such Registration Statement shall have received (x) the
copies of the amended or supplemented Prospectus contemplated by Section 5(j) or
(y) the Advice.
6. Registration Expenses.
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by the Company whether or not the
Exchange Offer is consummated or the Exchange Offer Registration Statement or a
Shelf Registration is filed or becomes effective, including, without limitation:
(i) all registration and filing fees (including, without limitation,
(A) fees with respect to filings required to be made with the NASD and (B)
fees and expenses of
-16-
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with
Blue Sky qualifications of the Registrable Securities or Exchange
Securities and determination of the eligibility of the Registrable
Securities or Exchange Securities for investment under the laws of such
jurisdictions (x) where the Holders are located, in the case of the
Exchange Securities, or (y) as provided in Section 5(f), in the case of
Registrable Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period));
(ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities or Exchange Securities in
a form eligible for deposit with DTC and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriters, if any,
or, in respect of Registrable Securities or Exchange Securities to be sold
by a Participating Broker-Dealer during the Applicable Period, by the
Holders of a majority in aggregate principal amount of the Registrable
Securities included in any Registration Statement or of such Exchange
Securities, as the case may be);
(iii) messenger, telephone, duplication, word processing and delivery
expenses incurred by the Company in the performance of its obligations
hereunder;
(iv) fees and disbursements of counsel for the Company and, subject to
Section 6(b), the Holders;
(v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance);
(vi) fees and expenses of any "qualified independent underwriter" or
other independent appraiser participating in an offering pursuant to
Section 3 of Schedule E to the By-laws of the NASD, but only where the need
for such a "qualified independent underwriter" arises due to a relationship
with the Company;
(vii) Securities Act liability insurance, if the Company so desires
such insurance;
(viii) fees and expenses of all other Persons, including special
experts, retained by the Company; internal expenses of the Company
(including, without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), and the expenses of
any annual audit; and
(ix) rating agency fees and the fees and expenses incurred in
connection with the listing of the Securities to be registered on any
securities exchange.
(b) The Company shall reimburse the Holders for the reasonable fees and
disbursements of not more than one counsel (in addition to appropriate local
counsel) chosen by the Holders of a majority in aggregate principal amount of
the Registrable Securities to be
-17-
included in any Registration Statement and other reasonable and necessary
out-of-pocket expenses of the Holders incurred in connection with the
registration of the Registrable Securities.
7. Indemnification.
(a) Indemnification by the Company. The Company shall, without limitation
as to time, indemnify and hold harmless each Holder and each Participating
Broker-Dealer, each Person who controls (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act (any of such persons being
hereinafter referred to as a "controlling person")) each such Holder and any
such Participating Broker-Dealer and the members, managers, officers, directors,
partners, employees, representatives and agents of each such Holder,
Participating Broker-Dealer and controlling person (collectively, the "Holder
Indemnified Parties"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and reasonable attorneys' fees) and expenses (including,
without limitation, costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the foregoing)
(collectively, "Losses"), as incurred, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus, Prospectus or form of prospectus, or in any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such Losses are based upon information relating to
such Holder or Participating Broker-Dealer and furnished in writing to the
Company by such Holder or Participating Broker-Dealer expressly for use therein;
provided, that the Company shall not be liable under the indemnity provided in
this Section 7(a) to any Holder Indemnified Party for any Losses that (A) result
solely from an untrue statement of a material fact contained in, or the omission
of a material fact from, any preliminary prospectus, which untrue statement or
omission was corrected in the Prospectus (as then amended or supplemented) if it
shall have been determined by a court of competent jurisdiction by final and
nonappealable judgment that (1) such Holder Indemnified Party sold the
Securities to the person alleging such Loss and failed to send or give, at or
prior to the written confirmation of such sale, a copy of the Prospectus (as
then amended or supplemented), if required by law to have so delivered it, and
(2) the Company had previously furnished copies of the corrected Prospectus to
such Holder Indemnified Party within a reasonable amount of time prior to such
sale or such confirmation, and (3) the corrected Prospectus, if delivered, would
have been a complete defense against the person asserting such Loss. The Company
shall also indemnify underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
members, managers, officers, directors, agents and employees and each of their
respective controlling persons to the same extent as provided above with respect
to the indemnification of the Holder Indemnified Parties.
(b) Indemnification by Holders of Registrable Securities. In connection
with any Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or any amendment or supplement thereto, in which a Holder is
participating, such Holder shall furnish to the Company in writing such
information as the Company reasonably request for use in connection with any
such Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, any amendment or supplement thereto, and shall, severally and not
jointly, without
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limitation as to time, indemnify and hold harmless the Company, its members,
managers, directors, officers, agents and employees, each controlling person of
the Company and the members, managers, directors, officers, agents or employees
of such controlling persons, to the fullest extent lawful, from and against any
and all Losses, as incurred, arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any such Registration
Statement, preliminary prospectus, Prospectus or form of prospectus, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading to the extent, but only to the extent, that such untrue
statement or alleged untrue statement of a material fact or omission or alleged
omission of a material fact is contained in or omitted from any information so
furnished in writing by such Holder to the Company expressly for use in any
Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or any amendment or supplement thereto. In no event shall the
liability of any selling Holder be greater in amount than such Holder's Maximum
Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnification hereunder (an
"indemnified party"), such indemnified party shall promptly notify the party or
parties from which such indemnification is sought (the "indemnifying parties")
in writing; provided, that the failure to so notify the indemnifying parties
shall not relieve the indemnifying parties from any obligation or liability
except to the extent (but only to the extent) that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal) that the indemnifying parties have been prejudiced materially
by such failure.
The indemnifying parties shall have the right, exercisable by giving
written notice to an indemnified party, within 20 Business Days after receipt of
written notice from such indemnified party of such Proceeding, to assume, at
their expense, the defense of any such Proceeding; provided, that an indemnified
party shall have the right to employ separate counsel in any such Proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless: (i) the
indemnifying parties have agreed to pay such fees and expenses; (ii) the
indemnifying parties shall have failed promptly to assume the defense of such
Proceeding or shall have failed to employ counsel reasonably satisfactory to
such indemnified party; or (iii) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and one or
more indemnifying parties (or any affiliates or controlling persons of any of
the indemnifying parties), and such indemnified party shall have been advised by
counsel that there may be one or more defenses available to such indemnified
party that are in addition to, or in conflict with, those defenses available to
the indemnifying party or such affiliate or controlling person (in which case,
if such indemnified party notifies the indemnifying parties in writing that it
elects to employ separate counsel at the expense of the indemnifying parties,
the indemnifying parties shall not have the right to assume the defense thereof
and the reasonable fees and expenses of such counsel shall be at the expense of
the indemnifying parties; it being understood, however, that, the indemnifying
parties shall not, in connection with any one such Proceeding or separate but
substantially similar or related Proceedings in the same jurisdiction, arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than
-19-
one separate firm of attorneys (together with appropriate local counsel) at any
time for such indemnified party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each indemnified
party from and against any and all Losses by reason of such settlement or
judgment. The indemnifying party shall not consent to the entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by the claimant or plaintiff to each indemnified party of a
release, in form and substance reasonably satisfactory to the indemnified party,
from all liability in respect of such Proceeding for which such indemnified
party would be entitled to indemnification hereunder (whether or not any
indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this Section 7 is
unavailable to an indemnified party or is insufficient to hold such indemnified
party harmless for any Losses in respect of which this Section 7 would otherwise
apply by its terms (other than by reason of exceptions provided in this Section
7), then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party,
on the one hand, and such indemnified party, on the other hand, from the sale of
Registrable Securities, or (ii) if the allocation provided by clause (i) above
is not permitted by Applicable Law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions, statements
or omissions that resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such indemnifying party, on the
one hand, and indemnified party, on the other hand, shall be determined by
reference to, among other things, whether any 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 indemnified party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent any such statement or omission. The amount
paid or payable by an indemnified party as a result of any Losses shall be
deemed to include any legal or other fees or expenses incurred by such party in
connection with any Proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
Section 7(a) or 7(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) 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 the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), an indemnifying party that
is a selling Holder shall not be required to contribute, in the aggregate, any
amount in excess of such Holder's Maximum Contribution Amount. A selling
Holder's "Maximum Contribution Amount" shall equal the excess, if any, of (i)
the aggregate proceeds received by such Holder pursuant to the sale of the
Registrable Securities giving rise to such indemnification obligation over (ii)
the aggregate amount of damages that such Holder has
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otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 7(d) are several in proportion to the respective principal amount
of the Registrable Securities held by each Holder hereunder and not joint.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability that the indemnifying parties otherwise may
have to the indemnified parties.
8. Rule 144 and Rule 144A.
The Company covenants that (a) during any period that it is required
to file reports under the Securities Act or the Exchange Act, it shall file all
reports required to be filed by it in a timely manner in order to permit resales
of Registrable Securities pursuant to Rule 144 under the Securities Act and (b)
during any period that it is not required to file such reports, it shall, upon
the request of any Holder, make available to each Holder or beneficial owner of
Registrable Securities and to any prospective purchaser of Registrable
Securities designated by such Holder or beneficial owner the information
required by Rule 144A(d)(4) under the Securities Act to permit resales of
Registrable Securities pursuant to Rule 144A. The Company shall take such
further action as any Holder may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable Securities without
registration under the Securities Act pursuant to the exemptions provided by
Rule 144 and Rule 144A. Upon the request of any Holder, the Company shall
deliver to such Holder a written statement as to whether such Issuer has
complied with such information requirements. Nothing in this Section 8 shall be
deemed to require the Company to register any Securities pursuant to the
Exchange Act.
9. 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 Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering with the consent of the Company, which
consent shall not be unreasonably withheld or delayed.
No Holder may participate in any Underwritten Registration hereunder
unless such ▇▇▇▇▇▇ (a) agrees to sell such ▇▇▇▇▇▇'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, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
10. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement (other than an Event), each Holder, in addition
to being entitled to exercise all rights provided herein, in the Indenture or,
in the case of the Initial Purchaser, in the Purchase
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Agreement, or granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Company agrees that
monetary damages would not be adequate compensation for loss incurred by reason
of such as breach by the Company and hereby further agrees that, in the event of
any action for specific performance in respect of such a breach by the Company,
the Company shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered into, as of the
date hereof, and shall not enter into, after the date of this Agreement, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. For the avoidance of doubt, nothing in this Agreement shall
limit the Company's ability to register shares underlying stock options granted
to the Company's directors, officers and employees in the ordinary course of the
Company's business.
(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 of the then outstanding aggregate principal amount of Registrable
Securities; provided, that Sections 4(a) and 7 shall not be amended, modified or
supplemented, and waivers or consents to departures from this proviso may not be
given, unless the Company has obtained the written consent of each Holder.
Notwithstanding the foregoing, a waiver or consent to depart from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, certified
first-class mail with return receipt requested, next-day air courier or
facsimile:
(i) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 10(d),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar (as defined in the Indenture); and
(ii) if to the Company, initially at Leucadia National Corporation,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile number (212)
598-4869, Attention: Chief Financial Officer, with a copy to ▇▇▇▇, Gotshal
& ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, facsimile number
(▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., and thereafter at
such other address, notice of which is given in accordance with the
provisions of this Section 10(d).
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All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier, if sent by next-day air
courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
including 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) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. When
a reference is made in this Agreement to a Section, paragraph, subparagraph,
Schedule or Exhibit, such reference shall mean a Section, paragraph,
subparagraph, Schedule or Exhibit to this Agreement unless otherwise indicated.
The words "include," "includes," and "including" when used in this Agreement
shall be deemed in each case to be followed by the words "without limitation."
The phrases "the date of this Agreement," "the date hereof," and terms of
similar import, unless the context otherwise requires, shall be deemed to refer
to June 5, 2003. The words "hereof," "herein," "herewith," "hereby" and
"hereunder" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED, AND
THE RIGHTS OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(b) OF NEW YORK CIVIL PRACTICE
LAWS AND RULES. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
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THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. THE COMPANY
IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS ADDRESS SET FORTH HEREIN,
SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF THE INITIAL PURCHASER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their respective best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction. It is hereby stipulated and declared to be
the intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company in respect of
securities sold pursuant to the Purchase Agreement. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any provision of
this Agreement, or where any provision hereof is validly asserted as a defense,
the prevailing party, as determined by the courts, shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedy.
(l) Securities Held by the Company or its Affiliates. Whenever the consent
or approval of Holders of a specified percentage of the principal amount of
Registrable Securities is
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required hereunder, Registrable Securities held by the Company or its affiliates
(as such term is defined in Rule 405 under the Securities Act) (other than
Holders deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
[signature pages follow this page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
LEUCADIA NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Name:
Title:
S-1