REGISTRATION RIGHTS AGREEMENT
Dated as of January 22, 1998
by and among
INTERNATIONAL SHIPHOLDING CORPORATION
and
CITICORP SECURITIES, INC.,
CITIBANK CANADA SECURITIES LIMITED
and
CITIBANK INTERNATIONAL PLC
as Initial Purchasers
_________________________________
$110,000,000
7 3/4% SENIOR NOTES DUE 2007
TABLE OF CONTENTS
-----------------
Page
1. Definitions 1
2. Exchange Offer 5
3. Shelf Registration 9
(a) Shelf Registration 9
(b) Subsequent Shelf Registrations 10
(c) Supplements and Amendments 10
4. Additional Amounts 11
5. Registration Procedures 13
6. Registration Expenses 24
7. Indemnification 25
8. Rules 144 and 144A 29
9. Underwritten Registrations 30
10. Miscellaneous 30
(a) Remedies 30
(b) No Inconsistent Agreements 30
(c) Adjustments Affecting Registrable Notes 31
(d) Amendments and Waivers 31
(e) Notices 31
(f) Successors and Assigns 33
(g) Counterparts 33
(h) Headings 33
(i) Governing Law 33
(j) Severability 33
(k) Notes Held by the Company or Its Affiliates 34
(l) Third Party Beneficiaries 34
(m) Entire Agreement 34
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Registration Rights Agreement (the "Agreement")
is made and entered into as of January 22, 1998, by and among
International Shipholding Corporation, a Delaware corporation
(the "Company"), and Citicorp Securities, Inc., Citibank Canada
Securities Limited and Citibank International plc
(collectively, the "Initial Purchasers").
This Agreement is entered into in connection with the
Purchase Agreement, dated January 14, 1998, by and among the
Company and the Initial Purchasers (the "Purchase Agreement")
relating to the sale by the Company to the Initial Purchasers
of $110,000,000 aggregate principal amount of the Company's
7 3/4% Senior Notes due 2007 (the "Notes"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement,
the Company has agreed to provide the registration rights set
forth in this Agreement for the benefit of the holders of
Registrable Notes (as defined), including, without limitation,
the Initial Purchasers. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation
to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
-----------
As used in this Agreement, the following terms shall
have the following meanings:
Additional Amounts: See Section 4(a).
Advice: See the last paragraph of Section 5.
Agreement: See the first introductory paragraph to
this Agreement.
Applicable Period: See the second paragraph of
Section 2(b).
Business Day: A day that is not a Saturday, a
Sunday, or a day on which banking institutions in New York, New
York are required to be closed.
Closing Date: The Closing Date as defined in the
Purchase Agreement.
Company: See the first introductory paragraph to
this Agreement.
Effectiveness Date: The 150th day after the Issue
Date, in the case of the Exchange Offer Registration Statement,
and the 150th day after the delivery of the Shelf Notice, in
the case of the Shelf Registration Statement.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934,
as amended, and the rules and regulations of the SEC
promulgated thereunder.
Exchange Notes: See Section 2(a).
Exchange Offer: See Section 2(a).
Exchange Offer Registration Statement: See
Section 2(a).
Filing Date: The 60th day after the Issue Date.
Holder: Any registered holder of Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of January 22,
1998, by and between the Company and The Bank of New York, 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 Purchasers: See the first introductory
paragraph to this Agreement.
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes
were sold to the Initial Purchasers pursuant to the Purchase
Agreement.
NASD: National Association of Securities Dealers,
Inc.
Notes: See the second introductory paragraph to this
Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See the first paragraph
of Section 2(b).
Person: An individual, trustee, corporation,
partnership, limited liability company, joint stock company,
trust, unincorporated association, union, business association,
firm or other legal entity.
Private Exchange: See the third paragraph of Section
2(b).
Private Exchange Notes: See the third paragraph of
Section 2(b).
Prospectus: The prospectus included in any
Registration Statement (including, without limitation, any
prospectus subject to completion and a prospectus that includes
any information previously omitted from a prospectus filed as
part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or
supplemented by any prospectus supplement, with respect to the
terms of the offering of any portion of the Registrable Notes
covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by
reference or deemed to be incorporated by reference in such
Prospectus.
Purchase Agreement: See the second introductory
paragraph to this Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon original issuance
thereof and at all times subsequent thereto, each Exchange Note
as to which Section 2(c)(iv) hereof is applicable upon original
issuance thereof and at all times subsequent thereto and each
Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, until, in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the
earliest to occur of (i) a Registration Statement (other than,
with respect to any Exchange Note as to which Section 2(c)(iv)
hereof is applicable) covering such Note, Exchange Note or
Private Exchange Note, as the case may be, has been declared
effective by the SEC and such Note, Exchange Note or Private
Exchange Note, as the case may be, has been disposed of in
accordance with such effective Registration Statement,
(ii) such Note, Exchange Note or Private Exchange Note, as the
case may be, is sold in compliance with Rule 144, (iii) in the
case of any Note, such Note has been exchanged pursuant to the
Exchange Offer for an Exchange Note or Exchange Notes which may
be resold without restriction under federal securities laws, or
(iv) such Note, Exchange Note or Private Exchange Note, as the
case may be, ceases to be outstanding for purposes of the
Indenture.
Registration Statement: Any registration statement
of the Company, including, but not limited to, the Exchange
Offer Registration Statement, that covers any of the
Registrable Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or
deemed to be incorporated by reference in such registration
statement.
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 providing for offers and sales of securities made in
compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus
delivery requirements of the Securities Act.
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 Act: The Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Shelf Registration Statement: See Section 3(a).
Subsequent Shelf Registration: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Notes means each outstanding Note
until (i) the date on which such Note has been exchanged for a
freely transferable Exchange Note in the Exchange Offer,
(ii) the date on which such Note has been effectively
registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iii) the
date on which such Senior Note is distributed to the public
pursuant to Rule 144 or is salable pursuant to Rule 144(k).
Trustee: The trustee under the Indenture and, if
existent, the trustee under any indenture governing the
Exchange Notes and Private Exchange Notes (if any).
Underwritten registration or underwritten offering:
A registration in which securities of the Company are sold to
an underwriter for reoffering to the public.
2. Exchange Offer
--------------
(a) The Company agrees to file with the SEC no later than the
Filing Date, an offer to exchange (the "Exchange Offer") any
and all of the Registrable Notes (other than Private Exchange
Notes, if any) for a like aggregate principal amount of debt
securities of the Company which are identical in all material
respects to the Notes (the "Exchange Notes") (and which are
entitled to the benefits of the Indenture or a trust indenture
which is identical in all material respects to the Indenture
(other than such changes to the Indenture or any such identical
trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been
qualified under the TIA), except that the Exchange Notes shall
have been registered pursuant to an effective Registration
Statement under the Securities Act and shall contain no
restrictive legend thereon. The Exchange Offer shall be
registered under the Securities Act on the appropriate form
(the "Exchange Offer Registration Statement") and shall comply
with all applicable tender offer rules and regulations under
the Exchange Act. The Company agrees to use its best efforts
to (i) cause the Exchange Offer Registration Statement to be
declared effective under the Securities Act on or before the
Effectiveness Date; (ii) keep the Exchange Offer open for not
less than 30 calendar days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is first
mailed to Holders; and (iii) consummate the Exchange Offer on
or prior to the 30th day following the date on which the
Exchange Offer Registration Statement is declared effective.
If after such Exchange Offer Registration Statement is
initially declared effective by the SEC, the Exchange Offer or
the issuance of the Exchange Notes thereunder is interfered
with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or
court, such Exchange Offer Registration Statement shall be
deemed not to have become effective for purposes of this
Agreement. Each Holder who participates in the Exchange Offer
will be required to represent that any Exchange Notes received
by it will be acquired in the ordinary course of its business,
that at the time of the consummation of the Exchange Offer such
Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange
Notes, that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the Securities Act, or if
it is an affiliate, it will comply with the registration and
prospectus delivery requirements of the Securities Act to the
extent applicable and any additional representations that in
the written opinion of counsel to the Company are necessary
under then-existing interpretations of the SEC in order for the
Exchange Offer Registration Statement to be declared effective.
In addition, if the Holder is not a Participating Broker-
Dealer, it will be required to represent that it is not engaged
in, and does not intend to engage in, the distribution of the
Exchange Notes. If the Holder is a Participating Broker-Dealer
that will receive Exchange Notes for its own account in
exchange for Notes that were acquired as a result of market-
making activities or other trading activities, it will be
required to acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Notes. Upon
consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable
Notes that are Private Exchange Notes and Exchange Notes held
by Participating Broker-Dealers, and the Company shall have no
further obligation to register Registrable Notes (other than
Private Exchange Notes and other than in respect of any
Exchange Notes as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 of this Agreement.
(b) The Company shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the
Initial Purchasers, which shall contain 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 Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-
Dealer"), whether such positions or policies have been publicly
disseminated by the staff of the SEC or such positions or
policies, in the judgment of the Initial Purchasers, represent
the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also allow, to the extent permitted
by applicable policies and regulations of the SEC, the use of
the Prospectus by all Persons subject to the prospectus
delivery requirements of the Securities Act, including, to the
extent so permitted, all Participating Broker-Dealers, and
include a statement describing the manner in which
Participating Broker-Dealers may resell the Exchange Notes.
The Company shall use its 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 connection with offers and
sales of the Exchange Notes; provided that such period shall
not exceed 180 calendar days (or such longer period if extended
pursuant to Section 5 hereof) (the "Applicable Period").
If, upon consummation of the Exchange Offer, any
Initial Purchaser holds any Notes acquired by it and having the
status of an unsold allotment in the initial distribution, the
Company upon the request of any such Initial Purchaser shall,
simultaneously with the delivery of the Exchange Notes in the
Exchange Offer, issue and deliver to such Initial Purchaser, in
exchange (the "Private Exchange") for the Notes held by such
Initial Purchaser, a like principal amount of debt securities
of the Company (the "Private Exchange Notes") that are
identical in all material respects to the Exchange Notes except
for the existence of restrictions on transfer of the Private
Exchange Notes under the Securities Act and securities laws of
the several states of the United States (and which are issued
pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes shall bear the same CUSIP number as the
Exchange Notes. Interest on the Exchange Notes and Private
Exchange Notes 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 Issue Date.
In connection with the Exchange Offer, the Company
shall:
(1) 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;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of
New York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable 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
(4) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the
Exchange Offer or the Private Exchange, as the case may be, the
Company shall:
(1) accept for exchange all Registrable Notes
validly tendered and not validly withdrawn pursuant to the
Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver
promptly to each Holder tendering such Registrable Notes,
Exchange Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Notes of such Holder
so accepted for exchange.
The Exchange Notes and the Private Exchange Notes may
be issued under (i) the Indenture or (ii) an indenture
identical in all material respects to the Indenture, which in
either event will provide that the Exchange Notes will not be
subject to the transfer restrictions set forth in the Indenture
and that the Exchange Notes, the Private Exchange Notes and the
Notes, if any, will vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private
Exchange Notes or the Notes, if any, will have the right to
vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Company
is not permitted to effect an Exchange Offer, (ii) the Exchange
Offer is not consummated within 30 Business Days following the
150th calendar day after the Issue Date, (iii) any holder of
Private Exchange Notes so requests in writing to the Company or
(iv) any Holder of Notes notifies the Company on or by the
20th Business Day following consummation of the Exchange Offer
that (a) it is prohibited by law or SEC policy from
participating in the Exchange Offer, (b) it may not resell the
Exchange Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales, (c) it is a broker-
dealer and owns Notes acquired directly from the Company or an
affiliate of the Company or (d) it does not otherwise receive
freely tradeable Exchange Notes in the Exchange Offer, then the
Company shall promptly deliver to the Holders and the Trustee
written notice thereof (the "Shelf Notice") and shall file a
Shelf Registration pursuant to Section 3.
3. Shelf Registration
------------------
If a Shelf Notice is delivered as contemplated by
Section 2(c), then:
(a) Shelf Registration. The Company shall as promptly as
practicable 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 Notes (the "Shelf Registration
Statement"). If the Company shall not have yet filed the
Exchange Offer Registration Statement, the Company shall use
its best efforts to file with the SEC the Shelf Registration
Statement on or prior to the Filing Date and shall use its best
efforts to cause such Shelf Registration Statement to be
declared effective under the Securities Act on or prior to the
Effectiveness Date. Otherwise, the Company shall use its best
efforts to file with the SEC the Shelf Registration Statement
within 30 days of the delivery of the Shelf Notice and shall
use its best efforts to cause such Shelf Registration Statement
to be declared effective under the Securities Act as promptly
as practicable thereafter. The Shelf Registration Statement
shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in
the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Company
shall not permit any securities other than the Registrable
Notes to be included in any Shelf Registration Statement. The
Company shall use its best efforts to keep the Shelf
Registration Statement continuously effective under the
Securities Act until two years after the Issue Date (or, if
Rule 144(k) is amended to permit unlimited resales by non-
affiliates within a lesser period, such lesser period) (subject
to extension pursuant to the last paragraph of Section 5
hereof) (the "Effectiveness Period") or such shorter period
ending when (i) all Registrable Notes covered by the Shelf
Registration Statement have been sold in the manner set forth
and as contemplated in the Shelf Registration Statement or
(ii) a Subsequent Shelf Registration covering all of the
Registrable Notes has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If the Shelf Registration
Statement or any Subsequent 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 Notes
registered thereunder), the Company shall use its 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 amend the Shelf Registration
Statement in a manner 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 Notes (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed,
the Company shall use its best efforts to cause the Subsequent
Shelf Registration to be declared effective as soon 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 Shelf Registration Statement or
any Subsequent Shelf Registrations was previously continuously
effective. As used herein the term "Shelf Registration" means
the Shelf Registration Statement and any Subsequent Shelf
Registrations.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend any Shelf Registration if required by the
rules, regulations or instructions applicable to the
registration form used for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Shelf Registration or by any
underwriter of such Registrable Notes, in each case, with the
Company's consent, which consent shall not be unreasonably
withheld or delayed.
4. Additional Amounts
------------------
(a) The Company and the Initial Purchasers agree that the
Holders of Registrable Notes will suffer damages if the Company
fails to fulfill its obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the
Company agrees to pay, as liquidated damages, additional
amounts in respect of Transfer Restricted Notes ("Additional
Amounts") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is filed with the
SEC on or prior to the Filing Date, or (B) notwithstanding that
the Company has consummated or will consummate an Exchange
Offer, the Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not filed on
or prior to the date required by this Agreement, then
commencing on the day after the Filing Date in the case of
clause (A) or commencing on the date such Shelf Registration
Statement is required to be filed, in the case of clause (B),
Additional Amounts shall be payable in respect of the Transfer
Restricted Notes over and above any stated interest at a rate
of 0.25% per annum for the first 90 days immediately following
the Filing Date or such other date, as the case may be, such
Additional Amounts payable increasing by an additional 0.25%
per annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Offer Registration
Statement nor a Shelf Registration Statement is declared
effective on or prior to the Effectiveness Date, or
(B) notwithstanding that the Company has consummated or will
consummate an Exchange Offer, the Company is required to file a
Shelf Registration Statement and such Shelf Registration
Statement is not declared effective by the SEC on or prior to
the 90th day following the date such Shelf Registration
Statement was filed, then commencing on the day after such
Effectiveness Date in the case of clause (A) or such 90th day
in the case of clause (B), Additional Amounts shall be payable
in respect of the Transfer Restricted Notes over and above any
stated interest at a rate of 0.25% per annum for the first 90
days immediately following the day after the Effectiveness Date
in the case of clause (A), or such 90th day in case of
clause (B), such Additional Amounts payable increasing by an
additional 0.25% per annum at the beginning of each subsequent
90-day period; and
(iii) if (A) the Exchange Offer is not consummated
within 30 Business Days of the date when the Exchange Offer
Registration Statement was declared effective, (B) the
Commission shall have issued a stop order suspending the
effectiveness of the Exchange Offer Registration Statement or
any Shelf Registration Statement with respect to the Notes at a
time when such Exchange Offer Registration Statement or Shelf
Registration Statement, as the case may be, is required to be
kept effective by the Company, or (C) or at any such time the
Prospectus contained in any such Exchange Offer Registration
Statement or Shelf Registration Statement, as amended or
supplemented, shall (1) not contain current information
required by the Securities Act and the rules and regulations
promulgated thereunder or (2) 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 they were made, not
misleading, then Additional Amounts shall be payable in respect
of the Transfer Restricted Notes over and above any stated
interest at a rate 0.25% per annum for the first 90 days
commencing on (x) the 30th day after such effective date in the
case of (A) above or (y) the date of the order suspending
effectiveness in the case of clause (B) above or (z) the
existence of any of the circumstances described in clause (C)
above, such Additional Amounts payable increasing by an
additional 0.25% per annum at the beginning of each such
subsequent 90-day period;
provided, however, that the Additional Amounts on the Transfer
Restricted Notes may not exceed in the aggregate 1.0% per
annum; provided further that (1) upon the filing of the
Exchange Offer Registration Statement or a Shelf Registration
Statement (in the case of (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a
Shelf Registration Statement, as the case may be (in the case
of (ii) above), or (3)(i) upon the consummation of the Exchange
Offer with respect to the Notes (in the case of (iii)(A)
above), (ii) the Exchange Offer Registration Statement or Shelf
Registration Act with respect to the Notes, as the case may be,
not being subject to an order suspending the effectiveness
thereof (in the case of (iii)(B) above) or (iii) upon the
Prospectus contained in any such Exchange Offer Registration
Statement or Shelf Registration containing the current
information required by the Securities Act and the rules and
regulations promulgated thereunder and the Exchange Offer
Registration Statement or Shelf Registration Statement not
containing an untrue statement of a material fact or omitting
to state a material fact, as the case may be (in the case of
(iii)(C) above), Additional Amounts on any Registrable Notes
then accruing Additional Amounts as a result of such clause (or
the relevant subclause thereof), as the case may be, shall
cease to accrue.
(b) The Company shall notify the Trustee within five
Business Days after each and every date on which an event occurs
in respect of which Additional Amounts are required to be paid
(an "Event Date"). Any Additional Amounts due pursuant to (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash
semi-annually on each regular interest payment date specified
in the Indenture (to the Holders of Transfer Restricted Notes
of record on the regular record date therefor (as specified in
the Indenture) immediately preceding such dates), commencing
with the first such regular interest payment date occurring
after any such Additional Amounts commence to accrue. The
amount of any Additional Amounts will be determined by
multiplying the applicable Additional Amounts rate by the
principal amount of the Notes subject thereto, multiplied by a
fraction, the numerator of which is the number of days such
Additional Amounts 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.
5. Registration Procedures
-----------------------
In connection with the filing of any Registration
Statement pursuant to Sections 2 or 3 hereof, the Company shall
effect such registrations to permit the sale of such securities
covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Company
hereunder, the Company shall:
(a) Prepare and file with the SEC prior to the Filing Date,
the Exchange Offer Registration Statement or if the Exchange
Offer Registration Statement is not filed or is unavailable, a
Shelf Registration as prescribed by Section 2 or 3, and use its
best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein;
provided that, 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 Notes during the
Applicable Period and has advised the Company that it is a
Participating Broker-Dealer, before filing any Registration
Statement or Prospectus or any amendments or supplements
thereto, the Company shall, if requested, furnish to and afford
the Holders of the Registrable Notes to be registered pursuant
to such Shelf Registration or each such Participating
Broker-Dealer, as the case may be, covered by such Registration
Statement, their counsel and the managing underwriters, if any,
a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be
filed (in each case at least five Business Days prior to such
filing). The Company shall not file any such Registration
Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration
Statement, or any such Participating Broker-Dealer, as the case
may be, their counsel, or the managing underwriters, if any,
shall reasonably object.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or
Exchange Offer Registration Statement, as the case may be, as
may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the
Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any Prospectus supplement
required by applicable law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force)
under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with
respect to the disposition of all securities covered by such
Registration Statement as so amended or in such Prospectus as
so supplemented and with respect to the subsequent resale of
any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Company shall be deemed
not to have used its best efforts to keep a Registration
Statement effective during the Applicable Period if it
voluntarily takes any action that would result in selling
Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not
being able to sell such Registrable Notes or such Exchange
Notes during that period unless such action is required by
applicable law, rule or regulation or unless the Company
complies with this Agreement, including, without limitation,
the provisions of paragraph 5(k) hereof and the last paragraph
of Section 5.
(c) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) 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 Notes during the
Applicable Period from whom the Company has received written
notice that it will be a Participating Broker-Dealer, notify
the selling Holders of Registrable Notes, and each such
Participating Broker-Dealer, their counsel and the managing
underwriters, if any, promptly (but in any event within two
Business Days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has
become effective (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by
reference and exhibits), (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 preliminary 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 Notes the representations and
warranties of the Company contained in any agreement (including
any underwriting agreement) contemplated by Section 5(n)
hereof 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 Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event,
the existence of any condition or any information becoming
known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any
material respect or that requires the making of any changes in,
or amendments or supplements to, such Registration Statement,
Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and (vi) of the Company's reasonable determination
that a post-effective amendment to a Registration Statement
would be appropriate.
(d) 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 Notes during the
Applicable Period, use its best efforts to prevent the issuance
of any order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of a
Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange
Notes to be sold by any Participating Broker-Dealer, for sale
in any jurisdiction, and, if any such order is issued, to use
its best efforts to obtain the withdrawal of any such order at
the earliest possible date.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the
Registrable Notes being sold in connection with an underwritten
offering, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such
information or revisions to information therein relating to
such underwriters or selling Holders as the managing
underwriters, if any, or such Holders or their counsel
reasonably request to be included or made therein, (ii) make
all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the
Company has received notification of the matters to be
incorporated in such prospectus supplement or post-effective
amendment, and (iii) supplement or make amendments to such
Registration Statement.
(f) 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 Notes during the
Applicable Period, furnish to each selling Holder of
Registrable Notes and to each such Participating Broker-Dealer
who so requests and to counsel and each managing underwriter,
if any, without charge, one conformed copy of the Registration
Statement or Registration Statements and each post-effective
amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all
exhibits.
(g) 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, deliver to each selling Holder of Registrable
Notes or each such Participating Broker-Dealer, as the case may
be, their respective counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus)
and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this
Section 5, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Notes and each Participating
Broker-Dealer, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to, such
Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, use
its best efforts to register or qualify, and cooperate with the
selling Holders of Registrable Notes and each such
Participating Broker-Dealer, the underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as
the case may be, 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 underwriter or underwriters, if any, reasonably
request in writing; provided that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered
pursuant to an underwritten offering, counsel to the
underwriters shall, at the cost and expense of the Company,
perform the Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section
5(h); 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 reasonably necessary or
advisable to enable the disposition in such jurisdictions of
the Exchange Notes by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration
Statement; provided that the Company shall not be required to
(A) qualify generally to do business in any jurisdiction where
it is not then so qualified, (B) take any action that would
subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject
itself to taxation in excess of a nominal dollar amount in any
such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes, any
Participating Broker-Dealer and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Notes 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; and enable such Registrable Notes to be in such
denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request.
(j) Use its best efforts to cause the Registrable Notes
covered by the Registration Statement to be registered with or
approved by such governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the
underwriters, if any, to consummate the disposition of such
Registrable Notes, in which case the Company will cooperate in
all reasonable respects with the filing of such Registration
Statement and the granting of such approvals.
(k) 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 Notes during the
Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as
promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the Company's sole expense, a
supplement or post-effective amendment to the Registration
Statement or a supplement to the related Prospectus or any
document incorporated or deemed to be incorporated therein by
reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes
being sold thereunder or to the purchasers of the Exchange
Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Notes
covered by a Registration Statement to be rated with the
appropriate rating agencies, if so requested by the Holders of
a majority in aggregate principal amount of Registrable Notes
covered by such Registration Statement or the managing
underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the
Trustee with printed certificates for the Registrable Notes in
a form eligible for deposit with The Depository Trust Company
and (ii) provide a CUSIP number for the Registrable Notes.
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes and take all
such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Notes
and, in such connection, (i) make such representations and
warranties to the underwriters, with respect to the business of
the Company and its subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case,
as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes,
and confirm the same in writing if and when requested;
(ii) obtain the opinion of counsel to the Company and updates
thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the
underwriters covering the matters customarily covered in
opinions requested in underwritten offerings of debt securities
similar to the Notes and such other matters as may be
reasonably requested by underwriters; (iii) obtain "cold
comfort" letters and updates thereof 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),
in form and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to each of the
underwriters, covering matters of the type customarily covered
in "cold comfort" letters in connection with underwritten
offerings of debt securities similar to the Notes and such
other matters as reasonably requested by the managing
underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable
than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority
in aggregate principal amount of Registrable Notes covered by
such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done
at each closing under such underwriting agreement, or as and to
the extent required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to
Section 3, or (2) 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 Notes during the
Applicable Period, make available for inspection by any selling
Holder of such Registrable Notes being sold, and each
Participating Broker-Dealer, any underwriter participating in
any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such
selling Holder, each Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours,
all financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary
to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all
information reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the
Company determines, in good faith, to be confidential and any
Records which it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a misstatement or
omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (iii) the information
in such Records has been made generally available to the public
other than as a result of a disclosure or failure to safeguard
by such Inspector or (iv) disclosure of such information is, in
the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon,
related to, or involving this Agreement, or any transactions
contemplated hereby or arising hereunder. Each selling Holder
of such Registrable Notes and each Participating Broker-Dealer
will be required to agree that information obtained by it as a
result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until
such is made generally available to the public. Each
Inspector, each selling Holder of such Registrable Notes and
each Participating Broker-Dealer will be required to further
agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction pursuant
to clauses (ii) or (iv) of the previous sentence or otherwise,
give notice to the Company and allow the Company to undertake
appropriate action to obtain a protective order or otherwise
prevent disclosure of the Records deemed confidential at its
expense.
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture
or the trust indenture provided for in Section 2(a), as the
case may be, to be qualified under the TIA not later than the
effective date of the Exchange Offer Registration Statement or
the first Registration Statement relating to the Registrable
Notes; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable
Notes, to 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 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.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders
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 at the end of any fiscal quarter in which
Registrable Notes 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.
(r) Upon consummation of the Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company, in a
form customary for underwritten transactions, addressed to the
Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as
the case may be, that the Exchange Notes or the Private
Exchange Notes, as the case may be, and the related indenture
constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with
their respective terms.
(s) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders
to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall mark, or
caused to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may
be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and
their respective counsel in connection with any filings
required to be made with the NASD.
(u) Use its reasonable best efforts to take all other steps
reasonably necessary to effect the registration of the
Registrable Notes covered by a Registration Statement
contemplated hereby.
The Company may require each seller of Registrable
Notes as to which any registration is being effected to furnish
to the Company such information regarding such seller and the
distribution of such Registrable Notes as the Company may, from
time to time, reasonably request. The Company may exclude from
such registration the Registrable Notes of any seller who fails
to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf
Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be
disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.
Each Holder of Registrable Notes and each
Participating Broker-Dealer agrees by acquisition of such
Registrable Notes or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, that, upon
receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv),
5(c)(v), or 5(c)(vi), such Holder will forthwith discontinue
disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be
sold by such Holder or Participating Broker-Dealer, as the case
may be, and, in each case, dissemination of such Prospectus
until such Holder's or Participating Broker-Dealer's receipt of
the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing
(the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Company
shall give any 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 Registrable Notes covered by such Registration
Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated
by Section 5(k) or (y) the Advice.
6. Registration Expenses
---------------------
All fees and expenses incident to the performance of
or compliance with this Agreement by the Company shall be borne
by the Company whether or not the Exchange Offer 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 in connection with an underwritten
offering and (B) fees and expenses of 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 Notes or Exchange
Notes and determination of the eligibility of the Registrable
Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are
located, in the case of the Exchange Notes, or (y) as provided
in Section 5(h) hereof, in the case of Registrable Notes or
Exchange Notes to be sold by a Participating Broker-Dealer
during the Applicable Period)), (ii) printing expenses,
including, without limitation, expenses of printing
certificates for Registrable Notes or Exchange Notes in a form
eligible for deposit with The Depository Trust Company and of
printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement
or by any Participating Broker-Dealer, as the case may be,
(iii) messenger, telephone and delivery expenses incurred in
connection with the Exchange Offer Registration Statement and
any Shelf Registration, (iv) fees and disbursements of counsel
for the Company and fees and disbursements of special counsel
for the Initial Purchasers and the sellers of Registrable
Notes, (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) rating agency fees, (vii) Securities Act liability
insurance, if the Company desires such insurance, (viii) fees
and expenses of all other Persons retained by the Company,
(ix) internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees
of the Company performing legal or accounting duties), (x) the
expense of any annual or special audit, (xi) the fees and
expenses incurred in connection with the listing of the
securities to be registered on any securities exchange,
(xii) the fees and disbursements of underwriters, if any,
customarily paid by issuers or sellers of securities (but not
including any underwriting discounts or commissions or transfer
taxes, if any, attributable to the sale of the Registrable
Notes which discounts, commissions or taxes shall be paid by
Holders of such Registrable Notes) and (xiii) the expenses
relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary
in order to comply with this Agreement.
7. Indemnification
---------------
(a) The Company agrees to indemnify and hold harmless
each Holder of Registrable Notes and each Participating
Broker-Dealer, the officers and directors of each such Person,
and each Person, if any, who controls any such Person within
the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities
(including, without limitation, the reasonable legal fees and
other reasonable expenses actually incurred in connection with
any suit, action or proceeding or any claim asserted) caused
by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or
supplemented if the Company shall have furnished any amendments
or supplements thereto) or caused by, arising out of or based
upon any 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, except insofar as
such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with
information relating to any Participant furnished to the
Company in writing by or on behalf of such Participant
expressly for use therein; provided, however, that the Company
shall not be liable if such untrue statement or omission or
alleged untrue statement or omission was contained or made in
any preliminary prospectus and corrected in the Prospectus or
any amendment or supplement thereto and the Prospectus does not
contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the
subject matter of the related proceeding and any such loss,
liability, claim, damage or expense suffered or incurred by the
Participants resulted from any action, claim or suit by any
Person who purchased Registrable Notes or Exchange Notes which
are the subject thereof from such Participant and it is
established in the related proceeding that such Participant
failed to deliver or provide a copy of the Prospectus (as
amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange
Notes sold to such Person if required by applicable law, unless
such failure to deliver or provide a copy of the Prospectus (as
amended or supplemented) was a result of noncompliance by the
Company with Section 5 of this Agreement.
(b) Each Participant will be required to agree, severally
and not jointly, to indemnify and hold harmless the Company, its
directors and officers and each Person who controls the Company
within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to each Participant, but
only with reference to information relating to such Participant
furnished to the Company in writing by such Participant
expressly for use in any Registration Statement or Prospectus,
any amendment or supplement thereto, or any preliminary
prospectus. The liability of any Participant under this
paragraph shall in no event exceed the proceeds received by
such Participant from sales of Registrable Notes or Exchange
Notes giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand
shall be brought or asserted against any Person in respect of
which indemnity may be sought pursuant to either of the two
preceding paragraphs, such Person (the "Indemnified Person")
shall promptly notify the Person against whom such indemnity
may be sought (the "Indemnifying Person") in writing, and the
Indemnifying Person, upon request of the Indemnified Person,
shall retain counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding
and shall pay the reasonable fees and expenses actually
incurred by such counsel related to such proceeding; provided,
however, that the failure to so notify the Indemnifying Person
shall not relieve it of any obligation or liability which it
may have hereunder or otherwise. In any such proceeding, any
Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the
Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is
understood that, unless there is a conflict among Indemnified
Persons, the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate
counsel (in addition to any local counsel) for all Indemnified
Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. Any such separate counsel for
the Participants and such control Persons of Participants shall
be designated in writing by Participants who sold a majority in
interest of Registrable Notes sold by all such Participants and
any such separate firm for the Company, its directors, officers
and such control Persons of the Company shall be designated in
writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if
there is a final non-appealable judgment for the plaintiff, the
Indemnifying Person agrees to indemnify any Indemnified Person
from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an Indemnified Person shall have
requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by
counsel as contemplated by the third sentence of this
paragraph, the Indemnifying Person agrees that it shall be
liable for any settlement of any proceeding effected without
its consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement; provided,
however, that the Indemnifying Person shall not be liable for
any settlement effected without its consent pursuant to this
sentence if the Indemnifying Person is contesting, in good
faith, the request for reimbursement. No Indemnifying Person
shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement
(A) includes an unconditional release of such Indemnified
Person, in form and substance satisfactory to such Indemnified
Person, from all liability on claims that are the subject
matter of such proceeding and (B) does not include any
statement as to an admission of fault, culpability or failure
to act by or on behalf of an Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect
of any losses, claims, damages or liabilities referred to
therein, then each Indemnifying Person under such paragraphs,
in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Person or Persons on the one
hand and the Indemnified Person or Persons on the other in
connection with the statements or omissions (or alleged
statements or omissions) that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations. The relative
fault of the parties shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of
a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company on
the one hand or by the Participants or such other Indemnified
Person, as the case may be, on the other, the parties' relative
intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission and any other
equitable considerations appropriate under the circumstances.
(e) The parties agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation (even if the Participants were treated as
one entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Person
as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above,
any reasonable legal or other expenses actually incurred by
such Indemnified Person in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 7, in no event shall a Participant
be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of
Registrable Notes or Exchange Notes, as the case may be,
exceeds the amount of any damages that such Participant has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the
Indemnifying Persons may otherwise have to the Indemnified
Persons referred to above.
8. Rules 144 and 144A
------------------
The Company covenants that it will file the reports
required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time it is not
required to file such reports, it will, upon the request of any
Holder of Registrable Notes, make publicly available other
information so long as necessary to permit sales pursuant to
Rule 144 and Rule 144A. The Company further covenants, for so
long as any Registrable Notes remain outstanding, to make
available to any Holder or beneficial owner of Registrable
Notes in connection with any sale thereof and any prospective
purchaser of such Registrable Notes from such Holder or
beneficial owner, the information required by Rule 144A(d)(4)
in order to permit resales of such Registrable Notes pursuant
to Rule 144A.
9. Underwritten Registrations
--------------------------
If any of the Registrable Notes 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
Notes included in such offering and reasonably acceptable to
the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder
(a) agrees to sell such Holder's Registrable Notes on the basis
provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and
(b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Company
of any of its obligations under this Agreement, each Holder of
Registrable Notes and each Participating Broker-Dealer holding
Exchange Notes, in addition to being entitled to exercise all
rights provided herein, in the Indenture or, in the case of an
Initial Purchaser, in the Purchase 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 any loss incurred by reason of a breach by it
of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific
performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not
entered, as of the date hereof, and shall not enter, after the date
of this Agreement, into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the
Holders of Registrable Notes in this Agreement or otherwise
conflicts with the provisions hereof. The Company has not
entered and will not enter into any agreement with respect to
any of its securities which will grant to any Person piggy-back
rights with respect to a Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Company
shall not, directly or indirectly, take any action with respect
to the Registrable Notes as a class that would adversely affect
the ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this
Agreement.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be
given, otherwise than with the prior written consent of (i) the
Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Notes and (ii) in
circumstances that would adversely affect Participating
Broker-Dealers, the Participating Broker-Dealers holding not
less than a majority in aggregate principal amount of the
Exchange Notes held by all Participating Broker-Dealers;
provided, however, that Section 7 and this Section 10(d) may
not be amended, modified or supplemented without the prior
written consent of each Holder and each Participating
Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Notes or Exchange
Notes, as the case may be, disposed of pursuant to any
Registration Statement). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of
Holders of Registrable Notes whose securities are being
tendered pursuant to the Exchange Offer or sold pursuant to a
Registration Statement and that does not directly or indirectly
affect, impair, limit or compromise the rights of other Holders
of Registrable Notes may be given by Holders of at least a
majority in aggregate principal amount of the Registrable Notes
being tendered or being sold by such Holders pursuant to such
Registration Statement.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air
courier or telecopier:
1. if to a Holder of Registrable Notes or any
Participating Broker-Dealer, at the most current address
of such Holder or Participating Broker-Dealer, as the case
may be, set forth on the records of the registrar under
the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
Citicorp Securities, Inc.
Citibank Canada Securities Limited
Citibank International plc
c/o Citicorp Securities, Inc.
399 Park Avenue
New York, New York 10043
Facsimile No.: (212) 559-0292
Attention: High-Yield Finance
Department
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: James J. Clark, Esq.
2. if to the Initial Purchasers, at the address
specified in Section 10(e)(1);
3. if to the Company, as follows:
International Shipholding Corporation
650 Poydras Street, Suite 1700
New Orleans, Louisiana 70130
Facsimile No.: (504) 529-2078
Attention: Chief Financial Officer
with copies to:
Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
201 Saint Charles Avenue
New Orleans, Louisiana 70170
Facsimile No.: (504) 582-8583
Attention: L. Richards McMillan, II, Esq.
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 guaranteeing
overnight delivery; and when receipt is acknowledged by the
addressee, if telecopied.
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 such Indenture.
(f) 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 and the Holders; provided, however,
that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to
the extent such successor or assign holds Registrable Notes.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
(j) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions
set forth herein shall remain in full force and effect and
shall in no way be affected, impaired or invalidated, and the
parties hereto shall use their best efforts to find and employ
an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(k) Notes Held by the Company or Its Affiliates.
Whenever the consent or approval of Holders of a specified percentage
of Registrable Notes is required hereunder, Registrable Notes held
by the Company or its affiliates (as such term is defined in
Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third Party Beneficiaries. Holders of Registrable Notes
and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the
parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral
or written agreements, representations, or warranties,
contracts, understandings, correspondence, conversations and
memoranda between the Initial Purchasers on the one hand and
the Company on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and
replaced hereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
INTERNATIONAL SHIPHOLDING
CORPORATION
By:
Name:
Title:
CITICORP SECURITIES, INC.
CITIBANK CANADA SECURITIES LIMITED
CITIBANK INTERNATIONAL PLC
By:
Name:
Title: