Exhibit 4.3
$500,000,000
GENERAL DYNAMICS CORPORATION
FLOATING RATE NOTES DUE 2004
REGISTRATION RIGHTS AGREEMENT
August 22, 2001
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
General Dynamics Corporation, a Delaware corporation (the
"ISSUER"), proposes to issue and sell to Bear, ▇▇▇▇▇▇▇ & Co. Inc. (the "INITIAL
PURCHASER"), upon the terms set forth in a purchase agreement of even date
herewith (the "PURCHASE AGREEMENT"), $500,000,000 aggregate principal amount of
its Floating Rate Notes due 2004 (the "INITIAL SECURITIES") to be
unconditionally guaranteed in accordance with the terms of the Indenture (as
defined herein) by each of the guarantors listed on Exhibit A to the Indenture
(the "GUARANTORS" and, collectively with the Issuer, the "COMPANY"). The Initial
Securities will be issued pursuant to an Indenture, to be dated as of August 27,
2001 (the "BASE INDENTURE"), among the Issuer, the Guarantors and The Bank of
New York, as trustee (the "TRUSTEE"), as supplemented by the First Supplemental
Indenture, to be dated as of August 27, 2001, among the Issuer, the Guarantors
and the Trustee (the "SUPPLEMENTAL INDENTURE" and, together with the Base
Indenture, the "INDENTURE"). 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 Initial Purchaser and the holders of the Securities (as
defined below) (collectively, the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by
applicable law, the Company shall use its reasonable best efforts to prepare and
within 150 days (such 150th day being a "FILING DEADLINE") after the date on
which the Initial Purchaser purchases the Initial Securities pursuant to the
Purchase Agreement (the "CLOSING DATE"), file with the Securities and Exchange
Commission (the "COMMISSION") a registration statement (the "EXCHANGE OFFER
REGISTRATION STATEMENT") on an appropriate form under the Securities Act of
1933, as amended (the "SECURITIES ACT"), with respect to a proposed offer (the
"REGISTERED EXCHANGE OFFER") to the Holders of Transfer Restricted Securities
(as defined in Section 7 hereof), who are not prohibited by any law or policy of
the Commission from participating in the Registered Exchange Offer, to issue and
deliver to such Holders, in exchange for the Initial Securities, a like
aggregate principal amount of debt securities of the Company issued under the
Indenture, identical in all material respects to the Initial Securities and
registered under the Securities Act (the "EXCHANGE SECURITIES"). The Company
shall use its reasonable best efforts to (i) cause such Exchange Offer
Registration Statement to become effective under the Securities Act within 240
days after the Closing Date (such 240th day being an "EFFECTIVENESS DEADLINE"),
(ii) cause the Registered Exchange Offer to be consummated no later than 270
days after the Closing Date (the "CONSUMMATION DEADLINE"), and (iii) keep the
Exchange Offer Registration Statement effective for not less than 30 days (or
longer, if required by applicable law) after the date notice of the Registered
Exchange Offer is mailed to the Holders (such period being called the "EXCHANGE
OFFER REGISTRATION PERIOD").
Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder (i) is not
an affiliate of the Company within the meaning of the Securities Act, (ii)
acquires the Exchange Securities in the ordinary course of such Holder's
business and (iii) has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act, in
the absence of an applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading activities, for
Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a
prospectus containing the information substantially in the form set forth in (A)
Annex A hereto on the cover, (B) Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section, and (C)
Annex C hereto in the "Plan of Distribution" section of such prospectus in
connection with a sale of any such Exchange Securities received by such
Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) if the
Initial Purchaser elects to sell Securities (as defined below) acquired in
exchange for Initial Securities constituting any portion of an unsold allotment,
it will be required to deliver a prospectus containing the information required
by Items 507 or 508 of Regulation S-K under the Securities Act, as applicable,
in connection with such sale.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or the Initial Purchaser, such period
shall be the lesser of
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90 days and the date on which all Exchanging Dealers and the Initial Purchaser
have sold all Exchange Securities held by them (unless such period is extended
pursuant to Section 3(j) below) and (ii) the Company shall make such prospectus
and any amendment or supplement thereto available to any broker-dealer for use
in connection with any resale of any Exchange Securities for a period of not
less than 90 days after the consummation of the Registered Exchange Offer.
If, upon consummation of the Registered Exchange Offer, the
Initial Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
the Initial Purchaser upon the written request of the Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by the Initial
Purchaser, a like principal amount of debt securities of the Company issued
under the Indenture and identical in all material respects to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company
shall:
(a) 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;
(b) keep the Registered 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;
(c) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of Manhattan, The City
of New York, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Securities
at any time prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
(y) deliver to the Trustee for cancellation all the
Initial Securities so accepted for exchange; and
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(z) cause the Trustee to authenticate and deliver
promptly to each Holder of the Initial Securities, Exchange Securities or
Private Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not
be subject to the transfer restrictions set forth in the Indenture and that all
the Securities will vote and consent together on all matters as one class and
that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Initial Securities surrendered in exchange therefor or, if no interest has
been paid on the Initial Securities, from the date of the original issuance of
the Initial Securities.
Each Holder participating in the Registered Exchange Offer shall
be required to represent to the Company that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in the
distribution of the Securities or the Exchange Securities within the meaning of
the Securities Act, (iii) such Holder is not an "affiliate," as defined in Rule
405 under the Securities Act, of the Company or if it is an affiliate, such
Holder will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable, (iv) 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 and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment 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 Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
2. Shelf Registration. If, (i) because of any change in law
or in applicable interpretations thereof by the staff of the Commission, the
Company is not permitted to effect a
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Registered Exchange Offer, as contemplated by Section 1 hereof, (ii) the
Registered Exchange Offer is not consummated by the 270th day after the Closing
Date, (iii) the Initial Purchaser so requests with respect to the Initial
Securities (or the Private Exchange Securities) not eligible to be exchanged for
Exchange Securities in the Registered Exchange Offer and held by it following
consummation of the Registered Exchange Offer or (iv) any Holder (other than an
Exchanging Dealer) is not eligible to participate in the Registered Exchange
Offer or, in the case of any Holder (other than an Exchanging Dealer) that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests, the Company shall take the following actions (the date on
which any of the conditions described in the foregoing clauses (i) through (iv)
occur, including in the case of clauses (iii) or (iv) the receipt of the
required notice, being a "TRIGGER DATE"):
(a) The Company shall use its reasonable best
efforts to file as promptly as practicable (but in no event more than 60 days
after the Trigger Date (such 60th day being a "FILING DEADLINE")) with the
Commission and thereafter use its reasonable best efforts to cause to be
declared effective no later than 160 days after the Trigger Date (such 160th day
being an "EFFECTIVENESS DEADLINE") a registration statement (the "SHELF
REGISTRATION STATEMENT" and, together with the Exchange Offer Registration
Statement, a "REGISTRATION STATEMENT") on an appropriate form under the
Securities Act relating to the offer and sale of the Transfer Restricted
Securities by the Holders thereof from time to time in accordance with the
methods of distribution set forth in the Shelf Registration Statement and Rule
415 under the Securities Act (hereinafter, the "SHELF REGISTRATION"); provided,
however, that no Holder (other than the Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
(b) The Company shall use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective in order
to permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years (or for such
longer period if extended pursuant to Section 3(j) below) from the date of its
effectiveness or such shorter period that will terminate when all the Securities
covered by the Shelf Registration Statement (i) have been sold pursuant thereto
or (ii) are no longer restricted securities (as defined in Rule 144 under the
Securities Act, or any successor rule thereof). The Company shall be deemed not
to have used its reasonable best efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes any
action that would result in Holders of Securities covered thereby not being able
to offer and sell such Securities during that period, unless such action is (i)
required by applicable law or (ii) taken by the Company in good faith as
contemplated by Section 3(b)(v) below, and the Company thereafter complies with
the requirements of Section 3(j).
(c) Notwithstanding any other provisions of this
Agreement to the contrary, the Company shall cause the Shelf Registration
Statement and the related prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not
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to contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading (in any case, other than with respect to information included therein
in reliance upon or in conformity with written information furnished to the
Company by or on behalf of any Holder specifically for use therein).
3. Registration Procedures. In connection with any Shelf
Registration contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The Company shall (i) furnish to the Initial
Purchaser, prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement, if any,
to the prospectus included therein and, in the event that the Initial Purchaser
(with respect to any portion of the unsold allotment from the original offering)
is participating in the Registered Exchange Offer or the Shelf Registration
Statement, the Company shall use its reasonable best efforts to reflect in each
such document, when so filed with the Commission, such comments as the Initial
Purchaser reasonably may propose; (ii) include the information substantially in
the form set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section and in Annex C hereto in the "Plan of Distribution" section of the
prospectus forming a part of the Exchange Offer Registration Statement and
include the information substantially in the form set forth in Annex D hereto in
the Letter of Transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by the Initial Purchaser, include the information required by
Items 507 or 508 of Regulation S-K under the Securities Act, as applicable, in
the prospectus forming a part of the Exchange Offer Registration Statement; (iv)
include within the prospectus contained in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," reasonably acceptable to
the Initial Purchaser, which shall contain a summary statement of the positions
taken or policies made by the staff of the Commission with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) of Exchange Securities received by such broker-dealer in
the Registered Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of the
Initial Purchaser based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in the
case of a Shelf Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement as
selling securityholders.
(b) The Company shall give written notice to the
Initial Purchaser, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior written notice that it
will be a Participating Broker-Dealer in the Registered Exchange Offer (which
notice pursuant to clauses (ii) through (v) of this Section 3(b) shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
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(i) when the Registration Statement or any
amendment thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto has
become effective;
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the
prospectus included therein or for additional information;
(iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its
legal counsel of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose; and
(v) of the happening of any event that
requires the Company to make changes in the Registration Statement or
the prospectus in order that the Registration Statement and the
prospectus do not contain an untrue statement of a material fact nor
omit to state a material fact required to be stated therein or necessary
to make the statements therein (in the case of the prospectus, in light
of the circumstances under which they were made) not misleading.
(c) The Company shall make every reasonable effort
to obtain the withdrawal at the earliest possible time, of any order suspending
the effectiveness of the Registration Statement.
(d) The Company shall furnish to each Holder of
Securities included within the coverage of the Shelf Registration, without
charge, at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, all exhibits thereto (including
those, if any, incorporated by reference).
(e) The Company shall deliver to each Exchanging
Dealer and the Initial Purchaser, and to any other Holder who so requests,
without charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules, and, if the Initial Purchaser or any such Holder requests, all
exhibits thereto (including those incorporated by reference).
(f) The Company shall, during the Shelf Registration
Period, deliver to each Holder of Securities included within the coverage of the
Shelf Registration, without charge, as many copies of the prospectus (including
each preliminary prospectus) included in the Shelf Registration Statement and
any amendment or supplement thereto as such person may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the
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use of the prospectus or any amendment or supplement thereto by each of the
selling Holders of the Securities in connection with the offering and sale of
the Securities covered by the prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Company shall deliver to the Initial
Purchaser, any Exchanging Dealer, any Participating Broker-Dealer and such other
persons required to deliver a prospectus following the Registered Exchange
Offer, without charge, as many copies of the final prospectus included in the
Exchange Offer Registration Statement and any amendment or supplement thereto as
such persons may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by the Initial Purchaser, if necessary, any Participating
Broker-Dealer and such other persons required to deliver a prospectus following
the Registered Exchange Offer in connection with the offering and sale of the
Exchange Securities covered by the prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement.
(h) Prior to any public offering of the Securities
pursuant to any Registration Statement, the Company shall register or qualify,
or cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification of, the
Securities for offer and sale under the securities or "blue sky" laws of such
states of the United States as any Holder of the Securities reasonably requests
in writing and do any and all other acts or things necessary or advisable to
enable the offer and sale of the Securities covered by such Registration
Statement in such jurisdictions; provided, however, that the Company shall not
be required to (i) qualify generally to do business in any jurisdiction where it
is not then so qualified or (ii) take any action which would subject it to
general service of process or to taxation in any jurisdiction where it is not
then so subject.
(i) The Company shall cooperate with the Holders of
the Securities to facilitate the timely preparation and delivery of certificates
representing the Securities to be sold pursuant to any Registration Statement
free of any restrictive legends and in such denominations and registered in such
names as the Holders may request a reasonable period of time prior to sales of
the Securities pursuant to such Registration Statement.
(j) Upon the occurrence of any event contemplated by
clauses (ii) through (v) of Section 3(b) above during the period for which the
Company is required to maintain an effective Registration Statement, the Company
shall promptly prepare and file a post-effective amendment to the Registration
Statement or an amendment or supplement to the related prospectus and any other
required document so that, as thereafter delivered to Holders of the Securities
or purchasers of Securities, the prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. If the Company
notifies the Initial Purchaser, the Holders of the Securities and any known
Participating Broker-Dealer in accordance with clauses (ii) through (v) of
Section 3(b) above to suspend the use of the prospectus until the requisite
changes to the prospectus have been made, then the Initial Purchaser, the
Holders of the Securities and any such Participating Broker-Dealers shall
suspend use of such prospectus, and the period of effectiveness of the Shelf
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Registration Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be extended by
the number of days from and including the date of the giving of such notice to
and including the date when the Initial Purchaser, the Holders of the Securities
and any known Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
(k) Not later than the effective date of the
applicable Registration Statement, the Company will provide a CUSIP number for
the Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and provide the Trustee with printed
certificates for the Initial Securities, the Exchange Securities or the Private
Exchange Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company.
(l) The Company will comply with all rules and
regulations of the Commission to the extent and so long as they are applicable
to the Registered Exchange Offer or the Shelf Registration and will make
generally available to its security holders (or otherwise provide in accordance
with Section 11(a) of the Securities Act) an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act, no later than 45 days after
the end of a 12-month period (or 90 days, if such period is a fiscal year)
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Registration Statement, which statement shall
cover such 12-month period.
(m) The Company shall cause the Indenture to be
qualified under the Trust Indenture Act of 1939, as amended (the "TRUST
INDENTURE ACT"), in a timely manner and containing such changes, if any, as
shall be necessary for such qualification. In the event that such qualification
would require the appointment of a new trustee under the Indenture, the Company
shall appoint a new trustee thereunder pursuant to the applicable provisions of
the Indenture.
(n) The Company may require each Holder of
Securities to be sold pursuant to the Shelf Registration Statement to furnish to
the Company such information regarding the Holder and the distribution of the
Securities as the Company may from time to time reasonably require for inclusion
in the Shelf Registration Statement, and the Company may exclude from such
registration the Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.
(o) In the case of a Shelf Registration Statement,
the Company shall enter into such customary agreements (including, if requested,
an underwriting agreement in customary form) and take all such other action, if
any, as Holders of a majority in aggregate principal amount of the Securities,
Exchange Securities and Private Exchange Securities being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate any
disposition of Securities, Exchange Securities or Private Exchange Securities
pursuant to such Shelf Registration Statement.
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(p) In the case of a Shelf Registration Statement,
the Company shall (i) make reasonably available for inspection by a
representative of, and Special Counsel (as defined below) acting for, the
Holders of a majority in aggregate principal amount of the Securities, Exchange
Securities or Private Exchange Securities being sold and any underwriter
participating in any disposition of Securities, Exchange Securities or Private
Exchange Securities pursuant to such Shelf Registration Statement, all relevant
financial and other records, pertinent corporate documents and properties of the
Company and (ii) cause the Company's officers, directors, employees, accountants
and auditors to supply all relevant information reasonably requested by any such
representative of the Holders, Special Counsel or underwriter in connection with
the Shelf Registration Statement, in each case, as shall be reasonably necessary
to enable such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; provided that the inspecting or receiving
party has executed and delivered to the Company a confidentiality agreement that
is reasonably acceptable to the Company and the applicable representative of the
Holders, if any, with respect to the information to be disclosed.
(q) In the case of a Shelf Registration Statement,
the Company shall, if requested by Holders of a majority in aggregate principal
amount of the Securities, Exchange Securities and Private Exchange Securities
being sold, their Special Counsel or the managing underwriters (if any) in
connection with such Shelf Registration Statement, use its reasonable best
efforts to cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form addressed to such Holders and the
managing underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement; (ii) its
officers to execute and deliver all customary documents and certificates and
updates thereof requested by any underwriters of the applicable Securities and
(iii) its independent public accountants and the independent public accountants
with respect to any other entity for which financial information is provided in
the Shelf Registration Statement to provide to the selling Holders of the
applicable Securities and any underwriter therefor a comfort letter in customary
form and covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if
reasonably requested by the Initial Purchaser or any known Participating
Broker-Dealer, the Company shall use its reasonable best efforts to cause (i)
its counsel to deliver to the Initial Purchaser or such Participating
Broker-Dealer a signed opinion in the forms set forth in Section 6(d), (e) and
(f) of the Purchase Agreement with such changes as are customary in connection
with the preparation of a Registration Statement and (ii) its independent public
accountants and the independent public accountants with respect to any other
entity for which financial information is provided in the Registration Statement
to deliver to the Initial Purchaser or such Participating Broker-Dealer a
comfort letter, in customary form, meeting the requirements as to the substance
thereof as set forth in Section 6(a) and (b) of the Purchase Agreement, with
appropriate date changes.
(s) If a Registered Exchange Offer or a Private
Exchange is to be consummated, upon delivery of the Initial Securities by
Holders to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private
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Exchange Securities, as the case may be, the Company shall ▇▇▇▇, or caused to be
marked, on the Initial Securities so exchanged that such Initial Securities are
being canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities be
marked as paid or otherwise satisfied.
(t) The Company will use its reasonable best
efforts, (a) if the Initial Securities have been rated prior to the initial sale
of such Initial Securities, to confirm such ratings will apply to the Securities
covered by a Registration Statement, or (b) if the Initial Securities were not
previously rated, to cause the Securities covered by a Registration Statement to
be rated with the appropriate rating agencies, if so requested by Holders of a
majority in aggregate principal amount of Securities covered by such
Registration Statement, or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered
under the Exchange Act shall underwrite any Securities or participate as a
member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "RULES") of the
National Association of Securities Dealers, Inc. (the "NASD")) thereof, whether
as a Holder of such Securities or as an underwriter, a placement or sales agent
or a broker or dealer in respect thereof, or otherwise, the Company will assist
such broker-dealer in complying with the requirements of such Rules, including,
without limitation, by (i) if such Rules, including Rule 2720, shall so require,
engaging a "qualified independent underwriter" (as defined in Rule 2720) to
participate in the preparation of the Registration Statement relating to such
Securities, to exercise usual standards of due diligence in respect thereto and,
if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Securities, (ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (iii) providing such information to such
broker-dealer as may be required in order for such broker-dealer to comply with
the requirements of the Rules.
(v) The Company shall use its reasonable best
efforts to take all other steps necessary to effect the registration of the
Securities covered by a Registration Statement contemplated hereby.
4. Registration Expenses. (a) All expenses incident to the
Company's performance of and compliance with this Agreement will be borne by the
Company, regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation;
(i) all registration and filing fees and
expenses;
(ii) all fees and expenses of compliance with
federal securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including
printing certificates for the Securities to be issued in the Registered
Exchange Offer and the
11
Private Exchange and printing of prospectuses), messenger and delivery
services and telephone;
(iv) all fees and disbursements of counsel
for the Company;
(v) all application and filing fees in
connection with listing the Exchange Securities on a national securities
exchange or automated quotation system pursuant to the requirements
hereof; and
(vi) all fees and disbursements of
independent certified public accountants of the Company (including the
expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will bear its internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses
of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement
required by this Agreement, the Company will reimburse the Initial Purchaser and
the Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as applicable,
for the reasonable fees and disbursements of not more than one counsel (the
"Special Counsel"), who shall be Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP unless
another firm shall be chosen by the Holders of a majority in principal amount of
the Transfer Restricted Securities for whose benefit such Registration Statement
is being prepared.
5. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Holder of the Securities, any Participating Broker-Dealer and
each person, if any, who controls such Holder or such Participating
Broker-Dealer within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act against any and all losses, liabilities, claims,
damages and expenses as incurred (including but not limited to reasonable
attorneys' fees and any and all reasonable expenses incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim, and subject to subsection (c) of this Section 5, any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or any
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration Statement or
prospectus or in any supplement thereto or amendment thereof or in any
preliminary prospectus relating to a Shelf Registration, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were
12
made, not misleading; provided, however, that the Company shall not be liable in
any such case to the extent but only to the extent that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company relating to any Holder by such Holder expressly for use
therein; and, provided, further, that with respect to any such untrue statement
in or omission from any related preliminary prospectus, the indemnity agreement
contained in this Section 5(a) shall not inure to the benefit of any Holder from
whom the person asserting any such loss, liability, claim, damage or expense
received Securities, Exchange Securities or Private Exchange Securities to the
extent that such loss, liability, claim, damage or expense of or with respect to
such Holder results from the fact that both (A) a copy of the final prospectus
was not sent or given to such person at or prior to the written confirmation of
the sale of such Securities, Exchange Securities or Private Exchange Securities
to such person and (B) the untrue statement in or omission from the related
preliminary prospectus was corrected in the final prospectus unless, in either
case, such failure to deliver the final prospectus was a result of
non-compliance by the Company with Section 3(d), 3(e), 3(f) or 3(g). This
indemnity agreement will be in addition to any liability which the Company may
otherwise have including under this Agreement. The Company shall also indemnify
underwriters, their officers and directors and each person who controls such
underwriters within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act to the same extent as provided above with respect to
the indemnification of the Holders of the Securities if requested by such
Holders.
(b) Each Holder of the Securities severally, and not
jointly, agrees to indemnify and hold harmless the Company, each of the
directors of the Company (including any person who, with his or her consent, is
named in a Registration Statement as about to become, and does become, a
director of the Company), each of the officers of the Company who shall have
signed a Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act, against any losses, liabilities, claims, damages and
expenses as incurred (including but not limited to reasonable attorneys' fees
and any and all reasonable expenses incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim and,
subject to subsection (c) of this Section 5, any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Securities Act, the Exchange Act or any
other federal or state law or regulation, at common law or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or prospectus
or in any supplement thereto or amendment thereof or in any preliminary
prospectus relating to a Shelf Registration, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company relating
13
to any Holder by such Holder expressly for use therein. This indemnity will be
in addition to any liability which any Holder may otherwise have including under
this Agreement.
(c) Promptly after receipt by an indemnified party
under subsection (a) or (b) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the commencement of such
action (but the failure so to notify an indemnifying party shall not relieve it
from any liability which it may have under this Section 5 except to the extent
that it has been materially prejudiced thereby). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) such indemnified party or parties shall have been advised by counsel that
there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties.
In no event shall the indemnifying party or parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if (A) the settlement is entered into more than 20
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party), (B) such indemnifying party shall have received notice of the terms of
such settlement at least 20 business days prior to such settlement being entered
into and (C) such indemnifying party shall not have reimbursed such indemnified
party in accordance with such request prior to the date of such settlement.
Notwithstanding the immediately preceding sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel (in any case where such fees
and expenses are at the expense of the indemnifying party), an indemnifying
party shall not be liable for any settlement of the nature contemplated by this
Section 5(c) effected without its consent if such indemnifying party (i)
reimburses such indemnified party in accordance with such request to the extent
that it considers such request to
14
be reasonable and (ii) provides written notice to the indemnified party
substantiating the unpaid balance as unreasonable, in each case prior to the
date of such settlement.
6. Contribution. (a) In order to provide for contribution
in circumstances in which the indemnification provided for in Section 5 hereof
is for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Holders shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any reasonable investigation, legal and other expenses
incurred in connection with, and, subject to the last sentence of this Section
6(a), any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Holders, who may also be liable for
contribution, including persons who control the Company within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act, officers
of the Company who signed a Registration Statement and directors of the Company
(including any person who, with his or her consent, is named in a Registration
Statement as about to become, and does become, a director of the Company)) as
incurred to which the Company and one or more of the Holders may be subject, in
such proportions as is appropriate to reflect the relative benefits received by
the Company and the Holders or such other indemnified party, as the case may be,
from the exchange of the Securities pursuant to the Registered Exchange Offer
or, if such allocation is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Company and the Holders or such other indemnified
party, as the case may be, in connection with the statements or omissions which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company
and of the Holders or such other indemnified party, as the case may be, shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Holders or
such other indemnified party, as the case may be, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or any violation of the nature referred to in Section
5(a). The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 6 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this Section
6, (i) in no case shall any Holder be liable or responsible for any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to a Registration Statement exceeds the amount
of damages which such Holders have otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and
(ii) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each person, if any, who controls a Holder or other indemnified
party, as the case may be, within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Holder or
15
such other indemnified party, and each person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed a Registration
Statement and each director of the Company (including any person who, with his
or her consent, is named in a Registration Statement as about to become, and
does become, a director of the Company) shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this Section 6. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties, notify each party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 6 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its written
consent; provided, however, that such consent was not unreasonably withheld.
(b) The agreements contained in Section 5 and this
Section 6 shall survive the sale of the Securities pursuant to a Registration
Statement and shall remain in full force and effect, regardless of any
termination or cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
7. Additional Interest Under Certain Circumstances. (a)
Additional interest (the "ADDITIONAL INTEREST") with respect to the Securities
shall be assessed as follows if any of the following events occur (each such
event in clauses (i) through (iv) of this Section 7(a) being herein called a
"REGISTRATION DEFAULT"):
(i) any Registration Statement required by
this Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline;
(ii) any Registration Statement required by
this Agreement is not declared effective by the Commission on or prior
to the applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not
been consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by
this Agreement has been declared effective by the Commission but (A)
such Registration Statement thereafter ceases to be effective or (B)
such Registration Statement or the related prospectus ceases to be
usable in connection with resales of Transfer Restricted Securities
during the periods specified herein because either (1) any event occurs
as a result of which the related prospectus forming part of such
Registration Statement would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein in the light of the circumstances under which they were made not
misleading, or (2) it
16
shall be necessary to amend such Registration Statement or supplement
the related prospectus, to comply with the Securities Act or the
Exchange Act or the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Securities over and
above the interest otherwise payable on the Securities from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all such Registration Defaults have been cured, at a rate of
0.125% per annum (the "ADDITIONAL INTEREST RATE") for the first 90-day period
immediately following the occurrence of such Registration Default. The
Additional Interest Rate shall increase by an additional 0.125% per annum with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum Additional Interest Rate of 0.25% per annum.
Notwithstanding the foregoing to the contrary, the amount of Additional Interest
payable shall not increase solely as a result of the occurrence and pendency of
more than one Registration Default.
(b) A Registration Default referred to in Section
7(a)(iv) hereof shall be deemed not to have occurred and be continuing in
relation to a Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing of a
post-effective amendment to such Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective
to permit Holders to use the related prospectus or (y) other material events
with respect to the Company that would need to be described in such Shelf
Registration Statement or the related prospectus and (ii) in the case of clause
(y), the Company is proceeding promptly and in good faith to amend or supplement
such Shelf Registration Statement and related prospectus to describe such events
as required by Section 3(j); provided, however, that in any case if such
Registration Default occurs for a continuous period in excess of 30 days,
Additional Interest shall be payable in accordance with Section 7(a) from the
day such Registration Default occurs until such Registration Default is cured,
at which time Additional Interest shall cease to accrue (but any accrued amount
shall be payable) and the interest rate on the Securities will revert to the
original rate.
(c) Any amounts of Additional Interest due pursuant
to Section 7(a) will be payable in cash on the regular interest payment dates
with respect to the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by the
principal amount of the Securities and further multiplied by a fraction, the
numerator of which is the number of days such Additional Interest Rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each
Security until (i) the date on which such Security has been exchanged by a
person other than a broker-dealer for a
17
freely transferable Exchange Security in the Registered Exchange Offer, (ii)
following the exchange by a broker-dealer in the Registered Exchange Offer of an
Initial Security for an Exchange Note, the date on which such Exchange Note is
sold to a purchaser who receives from such broker-dealer on or prior to the date
of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Security has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iv) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities Act or is
saleable pursuant to Rule 144(k) under the Securities Act.
8. Rules 144 and 144A. The Company shall use its reasonable
best efforts to file the reports required to be filed by it under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Company is
not required to file such reports, it will, upon the request of any Holder, make
publicly available information about the Company (within the meaning of Rules
144 and 144A under the Securities Act) so long as necessary to permit sales of
its Securities pursuant to Rules 144 and 144A. The Company covenants that it
will 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 Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of Rule
144A(d)(4)). The Company will provide a copy of this Agreement to prospective
purchasers of Initial Securities identified to the Company by the Initial
Purchaser upon request. Upon the request of any Holder of Transfer Restricted
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 8 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer
Restricted 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 administer the offering ("MANAGING UNDERWRITERS") will be
selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities to be included in such offering.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
18
10. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees
that any failure by the Company to comply with its obligations under Section 1
and 2 hereof may result in material irreparable injury to the Initial Purchaser
or the Holders 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 or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Sections 1 and 2 hereof. The Company further agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not
on or after the date of this Agreement enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's securities
under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, except by the Company
and the written consent of the Holders of a majority in principal amount of the
Securities affected by such amendment, modification, supplement, waiver or
consents.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which guarantees
overnight delivery:
(1) if to a Holder of the Securities, at the
most current address given by such Holder to the Company.
(2) if to the Initial Purchaser, to:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇ ▇'▇▇▇▇▇
with a copy to:
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
19
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
and with a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
(3) if to the Company, at its address as
follows:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
with a copy to:
Jenner & Block, LLC
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been
duly given: (i) at the time delivered by hand, if personally delivered; (ii)
three business days after being deposited in the mail, postage prepaid, if
mailed; (iii) when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and (iv) on the day delivered, if
sent by overnight air courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be
third party beneficiaries to 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 they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(f) Successors and Assigns. This Agreement shall be
binding upon the Company and its successors and assigns.
(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.
20
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(j) Severability. If 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.
(k) Securities Held by the Company. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such subsequent
Holders are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
21
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
among the Initial Purchaser, the Issuer and the Guarantors in accordance with
its terms.
Very truly yours,
GENERAL DYNAMICS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
AMERICAN OVERSEAS MARINE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
BATH IRON WORKS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
COMPUTER SYSTEMS & COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
ELECTRIC BOAT CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
22
GENERAL DYNAMICS ADVANCED TECHNOLOGY SYSTEMS,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
GENERAL DYNAMICS ARMAMENT SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
GENERAL DYNAMICS DEFENSE SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
GENERAL DYNAMICS GOVERNMENT SYSTEMS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
GENERAL DYNAMICS INFORMATION SYSTEMS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
GENERAL DYNAMICS LAND SYSTEMS INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Treasurer
23
GENERAL DYNAMICS ORDNANCE AND TACTICAL SYSTEMS,
INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
GULFSTREAM AEROSPACE CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
MATERIAL SERVICE RESOURCES COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
NATIONAL STEEL AND SHIPBUILDING COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Senior Managing Director
24
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging 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. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date (as defined herein), it
will make this prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
A-1
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial Securities were acquired
by such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 90 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until [_________], 200[_],
all dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.(1)
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to 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 the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale 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 any such broker-dealer or the purchasers of any such Exchange
Securities. Any broker-dealer that resells Exchange Securities that were
received by it for its own account pursuant to the Exchange Offer and any broker
or dealer that participates in a distribution of such Exchange Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such 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.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
------------------------
(1) In addition, the legend required by Item 502(b) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
C-1
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
________________________________________________________________
Address:
________________________________________________________________
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 Initial Securities that
were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; 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 Securities Act.
D-1