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REGISTRATION RIGHTS AGREEMENT
Dated as of June 16, 1997
by and among
CHEMICAL LEAMAN CORPORATION
and
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
and
SCHRODER WERTHEIM & CO. INCORPORATED,
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of June 16, 1997 by and among CHEMICAL LEAMAN CORPORATION, a
Pennsylvania corporation (the "Company"), and MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED ("Merrill Lynch") and SCHRODER WERTHEIM & CO. INCORPORATED
("Schroder" and, together with Merrill Lynch, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated as of June
10, 1997 by and among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for, among other things, the sale by the Company to
the Initial Purchasers of an aggregate of $100,000,000 principal amount of the
Company's 10-3/8% Senior Notes due 2005 (the "Securities"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
and delivery of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 3(t)
hereof.
"Business Day" shall mean 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 Time" shall mean the Closing Time as defined in the Purchase
Agreement.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depositary" shall mean The Depository Trust Company, or any other
depositary appointed by the Company; provided, however, that such
depositary must have an address in the Borough of Manhattan, in The City of
New York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Event Date" shall have the meaning set forth in Section 2(e) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Securities for Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-1 or S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Securities" shall mean the 10-3/8% Senior Notes due 2005,
issued by the Company under the Indenture containing terms identical to the
Securities (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Securities or, if no such interest
has been paid, from June 16, 1997 and (ii) the transfer restrictions
thereon shall be eliminated) to be offered to Holders of Securities in
exchange for Securities pursuant to the Exchange Offer.
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"Guarantors" shall have the meaning set forth in Section 7(c) hereof.
"Holder" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities dated
as of June 16, 1997 between the Company and First Union National Bank, as
trustee, as the same may be amended from time to time in accordance with
the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble
to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(t) hereof.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2(a)
hereof.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
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"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean each Security and, if issued, each
Private Exchange Security until (i) the date on which such Security has
been exchanged by a Person other than a Participating Broker-Dealer for an
Exchange Security in the Exchange Offer, (ii) following the exchange by a
Participating Broker-Dealer in the Exchange Offer of a Security for an
Exchange Security, the date on which such Exchange Security is sold to a
purchaser who receives from such Participating Broker-Dealer on or prior to
the date of such sale a copy of the Prospectus contained in the Exchange
Offer Registration Statement, as amended or supplemented, (iii) the date on
which such Security or Private Exchange Security, as the case may be, has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement, (iv) the date on which
such Security or Private Exchange Security, as the case may be, is eligible
for distribution to the public pursuant to Rule 144(k) under the Securities
Act (or any similar provision then in force, but not Rule 144A under the
Securities Act), (v) the date such Security or Private Exchange Security,
as the case may be, shall have been otherwise transferred by the holder
thereof and a new Security not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent
disposition of such Security shall not require registration or
qualification under the Securities Act or any similar state law then in
force or (vi) such Security or Private Exchange Security, as the case may
be, ceases to be outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. (the "NASD") registration and filing fees,
including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained
by any Initial Purchaser holding Registrable Securities in accordance with
the rules and regulations of the NASD, (ii) all fees and expenses incurred
in connection with compliance with state securities or blue sky laws
(including reasonable fees and
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disbursements of counsel for any underwriters or any Holder that was an
Initial Purchaser in connection with blue sky qualification of any of the
Exchange Securities or Registrable Securities) and compliance with the
rules of the NASD, (iii) all expenses of any Persons (other than the
Holders or Persons acting on the request of the Holders) in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or supplements
thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and
other documents relating to the performance of and compliance with this
Agreement, (iv) all rating agency fees, (v) the fees and disbursements of
counsel for the Company and of the independent certified public accountants
of the Company, including the expenses of any "cold comfort" letters
required by or incident to such performance and compliance, (vi) the fees
and expenses of the Trustee, and any exchange agent or custodian, (vii) all
fees and expenses incurred in connection with the listing, if any, of any
of the Registrable Securities on any securities exchange or exchanges, and
(viii) any fees and disbursements of any underwriter customarily required
to be paid by Company or sellers of securities and the reasonable fees and
expenses of any special experts retained by the Company in connection with
any Registration Statement, but excluding fees of counsel to the
underwriters or Holders and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean any registration statement of the
Company which covers any of the Exchange Securities or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof
which covers all of the Registrable Securities or all of the Private
Exchange Securities, as the case may be, on an appropriate form under Rule
415 under the Securities Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"TIA" shall have the meaning set forth in Section 3(l) hereof.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the Securities Act.
(a) Exchange Offer. To the extent not prohibited by any applicable law or
applicable SEC policy, the Company shall, for the benefit of the Holders, at the
Company's cost (i) file with the SEC within 60 days after the Closing Time an
Exchange Offer Registration Statement on an appropriate form under the
Securities Act covering the offer by the Company to the Holders to exchange all
of the Registrable Securities (other than Private Exchange Securities) for a
like principal amount of Exchange Securities, (ii) use its best efforts to cause
such Exchange Offer Registration Statement declared effective under the
Securities Act by the SEC not later than the date which is 120 days after the
Closing Time, (iii) use its best efforts to have such Registration Statement
remain effective until the closing of the Exchange Offer and (iv) commence the
Exchange Offer and use its best efforts to issue Exchange Securities in exchange
for all Securities properly tendered prior thereto in the Exchange Offer not
later than 30 days after the date on which the Exchange Offer Registration
Statement was declared effective by the SEC. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall promptly commence the
Exchange Offer, it being the objective of such Exchange Offer to enable each
Holder eligible and electing to exchange Registrable Securities for Exchange
Securities (assuming that such Holder is not an affiliate of the Company within
the meaning of Rule 405 under the Securities Act and is not a broker-dealer
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tendering Registrable Securities acquired directly from the Company for its own
account, acquires the Exchange Securities in the ordinary course of such
Holder's business and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the purpose of distributing (within the
meaning of the Securities Act) the Exchange Securities) to transfer such
Exchange Securities from and after their receipt without any limitations or
restrictions under the Securities Act and under state securities or blue sky
laws.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law) (such period referred to herein
as the "Exchange Period");
(iii) utilize the services of the Depositary for the Exchange Offer;
(iv) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day of the
Exchange Period, by sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Securities delivered for exchange, and
a statement that such Holder is withdrawing such Holder's election to have
such Securities exchanged;
(v) notify each Holder that any Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Agreement (except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial Purchasers
hold any Securities acquired by them and
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having the status of an unsold allotment in the initial distribution, the
Company upon the request of any Initial Purchaser shall, simultaneously with the
delivery of the Exchange Securities in the Exchange Offer, issue and deliver to
such Initial Purchaser in exchange (the "Private Exchange") for the Securities
held by such Initial Purchaser, a like principal amount of debt securities of
the Company that are identical (except that such securities shall bear
appropriate transfer restrictions) to the Exchange Securities (the "Private
Exchange Securities").
The Exchange Securities and the Private Exchange Securities shall be issued
under (i) the Indenture or (ii) an indenture identical to the Indenture in all
material respects and which, in either case, has been qualified under the TIA
and shall provide that the Exchange Securities shall not be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Securities, the Private Exchange
Securities and the Securities shall vote and consent together on all matters as
one class and that none of the Exchange Securities, the Private Exchange
Securities or the Securities will have the right to vote or consent as a
separate class on any matter. The Private Exchange Securities shall be of the
same series as, and the Company shall use its best efforts to have the Private
Exchange Securities bear the same CUSIP number as, the Exchange Securities.
As soon as practicable after the close of the Exchange Offer and/or the
Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Securities or portions thereof tendered
and not validly withdrawn pursuant to the Exchange Offer;
(ii) accept for exchange all Securities duly tendered pursuant to the
Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for
cancellation all Securities or portions thereof so accepted for exchange by
the Company, and issue, and cause the Trustee under the Indenture to
promptly authenticate and deliver to each Holder, a new Exchange Security
or Private Exchange Security, as the case may be, equal in principal amount
to the principal amount of the Securities surrendered by such Holder and
accepted for exchange.
To the extent not prohibited by any law or applicable interpretation of the
staff of the SEC, the Company shall use its best
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efforts to complete the Exchange Offer as provided above, and shall comply with
the applicable requirements of the Securities Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the staff of the SEC.
Each Holder of Registrable Securities who wishes to exchange such Registrable
Securities for Exchange Securities in the Exchange Offer will be required to
make certain customary representations in connection therewith, including
representations that such Holder is not an affiliate of the Company within the
meaning of Rule 405 under the Securities Act, or if it is such an affiliate, it
will comply with the registration and prospectus delivery requirements of the
Securities Act to the extent applicable, that any Exchange Securities to be
received by it will be acquired in the ordinary course of business and that at
the time of the commencement of the Exchange Offer it has no arrangement with
any Person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities. The Company shall inform the Initial
Purchasers, after consultation with the Trustee and the Initial Purchasers, of
the names and addresses of the Holders to whom the Exchange Offer is made, and
the Initial Purchasers shall have the right to contact such Holders and
otherwise facilitate the tender of Registrable Securities in the Exchange Offer.
Upon consummation of the Exchange Offer in accordance with this Section
2(a), the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities and Exchange Securities held by Participating
Broker-Dealers, and the Company shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities) pursuant to
Section 2(b) hereof.
(b) Shelf Registration. In the event that (i) the Company is not permitted
to file the Exchange Offer Registration Statement or to consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or SEC
policy, (ii) the Exchange Offer is not for any other reason consummated within
150 days after the Closing Time, (iii) any holder of Securities notifies the
Company within 30 days after the commencement of the Exchange Offer that (a) due
to a change in law or policy it is not entitled to participate in the Exchange
Offer, (b) due to a change in law or policy it may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without delivering
a prospectus and the
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prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such holder or (c) it is a
broker-dealer and owns Securities acquired directly from the Company or an
affiliate of the Company or (iv) the holders of a majority in aggregate
principal amount of the Securities may not resell the Exchange Securities
acquired by them in the Exchange Offer to the public without restriction under
the Securities Act and without restriction under applicable blue sky or state
securities laws, then the Company shall, at its cost, file as promptly as
practicable after such determination or date, as the case may be, and, in any
event, prior to the later of (A) 60 days after the Closing Time or (B) 30 days
after such filing obligation arises (provided, however, that if the Company has
not consummated the Exchange Offer within 150 days after the Closing Time, then
the Company shall file the Shelf Registration Statement with the SEC on or prior
to the 180th day after the Closing Time), a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Securities, and
shall use its best efforts to cause such Shelf Registration Statement declared
effective by the SEC as soon as practicable and, in any event, on or prior to 60
days after the obligation to file the Shelf Registration Statement arises. No
Holder of Registrable Securities may include any of its Registrable Securities
in any Shelf Registration pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 15 days after receipt of a
request therefor, such information as the Company may, after conferring with
counsel with regard to information relating to Holders that would be required by
the SEC to be included in such Shelf Registration Statement or Prospectus
included therein, reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish to the Company all information
with respect to such Holder necessary to make any information previously
furnished to the Company by such Holder not materially misleading.
The Company agrees to use its best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended for a period of two
years (or such shorter period provided for in any amendment to Rule 144(k) under
the Securities Act (or any successor provision other than Rule 144A) upon the
expiration of which securities are eligible for distribution to the public) from
the Closing Time or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant thereto (subject to extension pursuant to the
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last paragraph of Section 3 hereof) (the "Effectiveness Period"). The Company
shall not permit any securities other than Registrable Securities to be included
in the Shelf Registration. The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by the Securities Act or by any
other rules and regulations thereunder for shelf registrations, and the Company
agrees to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.
(c) Expenses. The Company shall pay all Registration Expenses in connection
with the registration pursuant to Section 2(a) or 2(b) hereof and any one
counsel designated in writing by the Majority Holders to act as counsel for the
Holders of the Registrable Securities in connection with a Shelf Registration
Statement. Except as provided in the preceding sentence, each Holder shall pay
all expenses of its counsel, underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided, however, that if,
after it has been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court, such Registration Statement will be deemed not to have been
effective during the period of such interference, until the offering of
Registrable Securities may legally resume. The Company will be deemed not to
have used its best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if they voluntarily take any action that
would result in any such Registration Statement not being declared effective or
in the Holders of Registrable Securities covered thereby not being able to
exchange or offer and sell such Registrable Securities during that period unless
such action is required by applicable law.
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(e) Additional Interest. If (i) the Company fails to file an Exchange Offer
Registration Statement or the Shelf Registration Statement on or before the date
specified herein for such filing, (ii) the Exchange Offer Registration Statement
or the Shelf Registration Statement is not declared effective by the SEC on or
prior to the date specified herein for such effectiveness (the "Effectiveness
Target Date"), (iii) the Exchange Offer is required to be consummated hereunder
and the Company fails to issue Exchange Securities in exchange for all
Securities properly tendered and not withdrawn in the Exchange Offer within 30
days of the Effectiveness Target Date with respect to the Exchange Offer
Registration Statement, or (iv) the Exchange Offer Registration Statement or the
Shelf Registration Statement required to be filed and declared effective
hereunder is declared effective but thereafter ceases to be effective or usable
in connection with the Exchange Offer or resales of Securities, as the case may
be, during the periods specified herein (each such event referred to in clauses
(i) through (iv) above, a "Registration Default"), then the interest rate borne
by the Registrable Securities as to which such Registration Default relates
shall be increased (the "Additional Interest"), with respect to the first 90-day
period (or portion thereof) while a Registration Default is continuing
immediately following the occurrence of such Registration Default, by 0.25% per
annum, such interest rate increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period (or portion thereof) while a
Registration Default is continuing until all Registration Defaults have been
cured, up to a maximum rate of Additional Interest of 1.00% per annum. Upon (w)
the filing of the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, required hereunder (in the case of
clause (i) of the preceding sentence), (x) the effectiveness of the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, required hereunder (in the case of clause (ii) of the preceding
sentence), (y) the issuance of Exchange Securities in exchange for all
Securities properly tendered and not withdrawn in the Exchange Offer (in the
case of clause (iii) of the preceding sentence) or (z) the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
the case may be, required hereunder which had ceased to be effective (in the
case of clause (iv) of the preceding sentence), Additional Interest as a result
of the Registration Default described in such clause shall cease to accrue (but
any accrued amount shall be payable) and the interest rate on the Securities
shall revert to the original rate if no other Registration Default has occurred
and is continuing.
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The Company shall notify the Trustee within three Business Days after each
and every date on which an event occurs in respect of which Additional Interest
is required to be paid (an "Event Date"). Additional Interest shall be paid by
depositing with the Trustee, in trust, for the benefit of the Holders of
Securities or of Private Exchange Securities, as the case may be, on or before
the applicable semiannual interest payment date, immediately available funds in
sums sufficient to pay the Additional Interest then due. The Additional Interest
due shall be payable on each interest payment date to the record Holder of
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture. Each obligation to pay Additional Interest shall be
deemed to accrue from and including the day following the applicable Event Date.
(f) Specific Enforcement. Without limiting the remedies available to the
Initial Purchasers and the Holders, the Company acknowledge that any failure by
the Company to comply with its obligations under Section 2(a) and Section 2(b)
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) hereof
within the relevant time period specified in Section 2 hereof on the
appropriate form under the Securities Act, which form (i) shall be selected
by the Company, (ii) shall, in the case of a Shelf Registration, be
available for the sale of the Registrable Securities by the selling Holders
thereof and (iii) shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith; and use its best efforts to
cause such Registration Statement to become effective and remain effective
in accordance with Section 2 hereof; provided, however, that if (1) such
filing is pursuant to Section 2(b), or (2) a Prospectus
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contained in an Exchange Offer Registration Statement filed pursuant to
Section 2(a) is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders of
the Registrable Securities and 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 (at least 10 Business Days prior to such filing). The Company shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document if the Majority
Holders or 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 Registration Statement as may be necessary to keep such
Registration Statement effective for the Effectiveness Period or the
Applicable Period, as the case may be; and cause each Prospectus to be
supplemented by any required prospectus supplement and as so supplemented
to be filed pursuant to Rule 424 (or any similar provision then in force)
under the Securities Act, and comply with the provisions of the Securities
Act, the Exchange Act and the rules and regulations promulgated thereunder
applicable to it with respect to the disposition of all securities covered
by each Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof described
in this Agreement (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least three Business Days prior to filing, that
a Shelf Registration Statement with respect to the Registrable Securities
is being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method selected
by the Majority Holders; and (ii) furnish to each Holder of Registrable
Securities and to each
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underwriter of an underwritten offering of Registrable Securities, if any,
without charge, as many copies of each Prospectus, including each
preliminary prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably request, in
order to facilitate the public sale or other disposition of the Registrable
Securities; and (iii) subject to the last paragraph of Section 3 hereof,
hereby consent to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Holders of Registrable Securities in
connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its best efforts to
register or qualify the Registrable Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the time the
applicable Registration Statement is declared effective by the SEC as any
Holder of Registrable Securities covered by a Registration Statement and
each underwriter of an underwritten offering of Registrable Securities
shall reasonably request in advance of such date of effectiveness, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable such Holder and underwriter to consummate the
disposition in each such jurisdiction of such Registrable Securities owned
by such Holder; provided, however, that the Company shall not be required
to (i) qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to qualify but for
this Section 3(d), (ii) file any general consent to service of process or
(iii) subject itself to taxation in any such jurisdiction if it is not so
subject;
(e) in the case of (1) a Shelf Registration or (2) Participating
Broker-Dealers who have notified the Company that they will be utilizing
the Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, notify each Holder of Registrable
Securities, or such Participating Broker-Dealers, as the case may be, their
counsel and the managing underwriters, if any, promptly and confirm such
notice in writing (i) when a Registration Statement has become effective
and when any post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state securities authority
for amendments and supplements to a Registration Statement or Prospectus
-15-
or for additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iv) in
the case of a Shelf Registration, if, between the effective date of a
Registration Statement and the closing of any sale of Registrable
Securities covered thereby, the representations and warranties of the
Company contained in any underwriting agreement, securities sales agreement
or other similar agreement, if any, relating to such offering (but not
including the Purchase Agreement, the Indenture or this Agreement) cease to
be true and correct in all material respects, (v) if the Company receives
any notification with respect to the suspension of the qualification of the
Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction or the
initiation of any proceeding for such purpose, (vi) of the happening of any
event or the failure of any event to occur or the discovery of any facts or
otherwise during the Effectiveness Period or Applicable Period, as the case
may be, which makes any statement made in a Registration Statement or the
related Prospectus untrue in any material respect or which causes such
Registration Statement or Prospectus to omit to state a material fact
necessary to make the statements therein (in the case of the Prospectus, in
the light of the circumstances under which they were made) not misleading
and (vii) the Company's reasonable determination that a post-effective
amendment to the Registration Statement would be appropriate;
(f) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement as soon as
practicable;
(g) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, without charge, at least one conformed copy of each
Registration Statement relating to such Shelf Registration and any
post-effective amendment thereto (without documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders of Registrable Securities to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and
not bearing any restrictive legends; and cause such
-16-
Registrable Securities to be in such denominations (consistent with the
provisions of the Indenture) and registered in such names as the selling
Holders or the underwriters may reasonably request at least two Business
Days prior to the closing of any sale of Registrable Securities;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(v), 3(e)(vi) or 3(e)(vii) hereof, use its
best efforts to prepare a supplement or post-effective amendment to a
Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
(subject to Section 3(a)) so that, as thereafter delivered to the
purchasers of the Registrable Securities or Exchange Securities to whom a
Prospectus is being delivered by a Participating Broker-Dealer who has
notified the Company that it will be utilizing the Prospectus contained in
the Exchange Offer Registration Statement as provided in Section 3(t)
hereof, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and to notify each Holder or Participating Broker-Dealer, as
the case may be, to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder and
Participating Broker-Dealer hereby agrees to suspend use of the Prospectus
until the Company have amended or supplemented the Prospectus to correct
such misstatement or omission;
(j) in the case of a Shelf Registration, upon the filing of any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus after the initial filing of a Registration
Statement, provide a reasonable number of copies of such document to the
Holders;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with certificates for the
Exchange Securities or the Registrable Securities, as the case may be, in a
form eligible for deposit with the Depositary;
(l) cause the Indenture or the indenture provided for in Section 2(a)
to be qualified under the TIA in
-17-
connection with the registration of the Exchange Securities or Registrable
Securities, as the case may be, cooperate with the Trustee or any trustee
under such indenture and the Holders to effect such changes to the
Indenture or such indenture as may be required for the Indenture or such
indenture to be so qualified in accordance with the terms of the TIA and
execute, and use their best efforts to cause the Trustee or 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 the
Indenture or such indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten
offerings and take all such other appropriate actions as are reasonably
requested in order to expedite or facilitate the registration or the
disposition of such Registrable Securities, and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration: (i) make such representations
and warranties to Holders of such Registrable Securities and the
underwriters (if any), with respect to the business of the Company and its
subsidiaries as then conducted or proposed to be conducted 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 Company to underwriters in underwritten offerings, and
confirm the same if and when requested; (ii) obtain opinions of counsel to
the Company and updates thereof in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Holders of a
majority in principal amount of the Registrable Securities being sold,
addressed to each selling Holder and the underwriters (if any) covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders and
underwriters; (iii) obtain "cold comfort" letters and updates thereof in
form and substance reasonably satisfactory to the managing underwriters (if
any) from the independent certified public accountants of the Company (and,
if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the selling Holders
of Registrable
-18-
Securities and to each of the underwriters (if any), such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings and such
other matters as reasonably requested by such selling Holders and
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 4 hereof (or such other less
favorable provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Securities covered by such
Registration Statement and the managing underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section
(including, without limitation, such underwriters and selling Holders). The
above shall be done at each closing under such underwriting agreement, or
as and to the extent required thereunder;
(n) if (1) a Shelf Registration is filed pursuant to Section 2(b) or
(2) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Securities during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Securities being sold,
or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent retained by
any such selling Holder or each such 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 their 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 in each case
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 they notify the Inspectors
are confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary in connection with the Inspectors'
assertion of any claims or actions or with their
-19-
establishment of any defense in an action then pending before a court of
competent jurisdiction, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made
generally available to the public. Each selling Holder of such Registrable
Securities and each such 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 selling Holder of such
Registrable Securities and each such Participating Broker-Dealer will be
required to further agree that it will, prior to disclosure of such Records
pursuant to clause (i) or (ii) above, give prompt notice to the Company and
allow the Company at its expense to undertake appropriate action to prevent
disclosure to the public of the Records deemed confidential;
(o) comply with all applicable rules and regulations of the SEC and
make generally available to their 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 Securities
are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods;
(p) upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company addressed to the Trustee for
the benefit of all Holders of Registrable Securities participating in the
Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) the Company has duly authorized, executed and
delivered the Exchange Securities and Private Exchange Securities and the
Indenture, and (ii) each of the Exchange Securities or the Private Exchange
Securities, as the case may be, and the Indenture constitute a legal, valid
and binding obligation of the Company, enforceable against the Company in
accordance
-20-
with its respective terms (in each case, with customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable 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 Exchange Securities, as the case may be,
the Company shall mark, or cause to be marked, on such Registrable
Securities delivered by such Holders that such Registrable Securities are
being cancelled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; in no event shall such Registrable
Securities be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the NASD;
(s) use their best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to the
Initial Purchasers or another representative of the Participating
Broker-Dealers, and 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 (a "Participating
Broker-Dealer") that holds Registrable Securities acquired for its own
account as a result of market-making activities or other trading activities
and that will be the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities to be received by such broker-dealer
in the Exchange Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or
policies, in the reasonable judgment of the Initial Purchasers or such
other representative, represent the prevailing views of the staff of the
SEC, including a statement that any such
-21-
broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities, (ii) furnish to
each Participating Broker-Dealer who has delivered to the Company the
notice referred to in Section 3(e), without charge, as many copies of each
Prospectus included in the Exchange Offer Registration Statement, including
any preliminary prospectus, and any amendment or supplement thereto, as
such Participating Broker-Dealer may reasonably request (iii) hereby
consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any
Person subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto, (iv) 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 order to resell the Exchange
Securities; provided, however, that such period shall not be required to
exceed 180 days (or such longer period if extended pursuant to the last
sentence of Section 3 hereof) (the "Applicable Period"), and (iv) include
in the transmittal letter or similar documentation to be executed by an
exchange offeree in order to participate in the Exchange Offer (x) the
following provision:
"If the exchange offeree is a broker-dealer holding Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities, it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer";
and (y) a statement to the effect that by a Participating Broker-Dealer
making the acknowledgment described in clause (x) and by delivering a
Prospectus in connection with the exchange of Registrable Securities, such
-22-
Participating Broker-Dealer will not be deemed to admit that it is an
underwriter within the meaning of the Securities Act; and
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to Participating
Broker-Dealers upon consummation of the Exchange Offer (i) an opinion of
counsel substantially in the form attached hereto as Exhibit A, and (ii) an
officers' certificate containing certifications substantially similar to
those set forth in Section 5(e) of the Purchase Agreement and such
additional certifications as are customarily delivered in a public offering
of debt securities.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding such seller and the proposed distribution of such Registrable
Securities, as the Company may from time to time reasonably request in writing.
The Company may exclude from such registration the Registrable Securities of any
seller who fails to furnish any such information which the Company reasonably
requires in order for the Shelf Registration Statement to comply with applicable
law and SEC policy within a reasonable time after receiving such request and
shall be under no obligation to compensate any such seller for any lost income,
interest or other opportunity forgone, or any liability incurred, as a result of
the Company's decision to exclude such seller.
In the case of (1) a Shelf Registration Statement or (2) Participating
Broker-Dealers who have notified the Company that they will be utilizing the
Prospectus contained in the Exchange Offer Registration Statement as provided in
Section 3(t) hereof that are seeking to sell Exchange Securities and are
required to deliver Prospectuses, each Holder or Participating Broker-Dealer, as
the case may be, agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e)(ii), 3(e)(iii),
3(e)(v), 3(e)(vi) or 3(e)(vii) hereof, such Holder or Participating
Broker-Dealer, as the case may be, will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement or Exchange
Securities, as the case may be, until such Holder's or Participating
Broker-Dealer's, as the case may be, receipt of the copies of the supplemented
or amended Prospectus contemplated by Section 3(i) hereof or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, if so directed
-23-
by the Company, such Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Company (at the Company's expense) all copies in such
Holder's or Participating Broker-Dealer's, as the case may be, possession, other
than permanent file copies then in such Holder's or Participating
Broker-Dealer's, as the case may be, possession, of the Prospectus covering such
Registrable Securities or Exchange Securities, as the case may be, current at
the time of receipt of such notice. If the Company shall give any such notice to
suspend the disposition of Registrable Securities or Exchange Securities, as the
case may be, pursuant to a Registration Statement, (x) the Company shall use its
best efforts to file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to the Registration Statement and, in the
case of an amendment, have such amendment declared effective as soon as
practicable; provided, however, that the Company may postpone the filing of such
amendment or supplement for a period not to extend beyond the earlier to occur
of (I) 30 days after the date of the determination of the Board of Directors
referred to below and (II) the day after the cessation of the circumstances
described below upon which such postponement is based, if the Board of Directors
of the Company determines reasonably and in good faith that such filing would
require disclosure of material information which the Company has a bona fide
purpose for preserving as confidential; provided, further, however, that the
Company shall be entitled to such postponement only once during any 12-month
period and the exercise by the Company of its rights under this provision shall
not relieve it of any obligation to pay Additional Interest under Section 2(e);
and (y) the Company shall extend the period during which such Registration
Statement shall be maintained effective pursuant to this Agreement by the number
of days in the period from and including the date of the giving of such notice
to and including the date when the Company shall have made available to the
Holders or Participating Broker-Dealers, as the case may be, (x) copies of the
supplemented or amended Prospectus necessary to resume such dispositions or (y)
the Advice.
4. Indemnification and Contribution. (a) The Company shall indemnify and
hold harmless each Initial Purchaser, each Holder, each Participating
Broker-Dealer, each underwriter who participates in an offering of Registrable
Securities, their respective affiliates, each Person, if any, who controls any
of such parties within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act and each of their respective directors, officers,
employees and agents, as follows:
-24-
(i) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto), covering
Registrable Securities or Exchange Securities, including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, joint or several, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any court or governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, if such
settlement is effected with the prior written consent of the Company; and
(iii) against any and all expenses whatsoever, as incurred (including
reasonable fees and disbursements of counsel chosen by the Initial
Purchasers, such Holder, such Participating Broker-Dealer or any
underwriter (except to the extent otherwise expressly provided in Section
4(c) hereof)), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such expense
is not paid under subparagraph (i) or (ii) of this Section 4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made in reliance upon and
in conformity with written information furnished in writing to the Company by
such Initial Purchaser, such Holder, such Participating Broker-Dealer or any
underwriter with respect to such Initial
-25-
Purchaser, Holder, Participating Broker-Dealer or underwriter, as the case may
be, expressly for use in the Registration Statement (or any amendment or
supplement thereto) or any Prospectus (or any amendment or supplement thereto)
or (ii) contained in any preliminary prospectus if such Initial Purchaser, such
Holder, such Participating Broker-Dealer or such underwriter failed to send or
deliver a copy of the Prospectus (in the form it was first provided to such
parties for confirmation of sales or as amended or supplemented pursuant to
Section 3(i) prior to such confirmation of sales) to the Person asserting such
losses, claims, damages or liabilities on or prior to the delivery of written
confirmation of any sale of securities covered thereby to such Person in any
case where such delivery is required by the Securities Act and a court of
competent jurisdiction in a judgment not subject to appeal or final review shall
have determined that such Prospectus would have corrected such untrue statement
or omission. Any amounts advanced by the Company to an indemnified party
pursuant to this Section 4 as a result of such losses shall be returned to the
Company if it shall be finally determined by such a court in a judgment not
subject to appeal or final review that such indemnified party was not entitled
to indemnification by the Company.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Company, each Initial Purchaser, each underwriter who participates
in an offering of Registrable Securities and the other selling Holders and each
of their respective directors, officers (including each officer of the Company
who signed the Registration Statement), employees and agents and each Person, if
any, who controls the Company, any Initial Purchaser, any underwriter or any
other selling Holder within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, against any and all loss, liability, claim, damage and
expense whatsoever described in the indemnity contained in Section 4(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such selling Holder with respect to such Holder expressly for use in
the Registration Statement (or any supplement thereto), or any such Prospectus
(or any amendment thereto); provided, however, that, in the case of the Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale or
other disposition of Registrable Securities pursuant to the Shelf Registration
Statement.
-26-
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 4(a) above, counsel to the indemnified parties shall be
selected by Merrill Lynch, and, in the case of parties indemnified pursuant to
Section 4(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 4 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel to which such indemnified party is entitled pursuant to
Section 4(a) or (b), such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 4(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such
-27-
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
(e) In order to provide for just and equitable contribution in
circumstances under which any of the indemnity provisions set forth in this
Section 4 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company and the Holders
shall contribute to the aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement incurred by the
Company, the Initial Purchasers, the Holders and the Participating
Broker-Dealers; provided, however, that 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 that was not guilty of such
fraudulent misrepresentation. As between the Company and the Holders, such
parties shall contribute to such aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement in such
proportion as shall be appropriate to reflect the relative fault of the Company
on the one hand and of the Holder of Registrable Securities, the Participating
Broker-Dealer or Initial Purchaser, as the case may be, on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative fault of the Company on the one hand and the Holder of
Registrable Securities, the Participating Broker-Dealer or the Initial
Purchasers, as the case may be, on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, or by the Holder of Registrable
Securities, the Participating Broker-Dealer or the Initial Purchasers, as the
case may be, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company and the Holders of the Registrable Securities and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 4.
-28-
For purposes of this Section 4, each affiliate of any Initial Purchaser or
Holder, and each director, officer, employee, agent and Person, if any, who
controls a Holder of Registrable Securities, a Initial Purchaser or a
Participating Broker-Dealer within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act shall have the same rights to contribution
as such other Person, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each Person, if any, who
controls the Company within the meaning of Section 15 of the Securities act or
Section 20 of the Exchange Act shall have the same rights to contribution as the
Company.
5. Participation in Underwritten Registrations. No Holder may participate
in any underwritten registration hereunder unless such Holder (a) agrees to sell
such Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements. The
Company shall be under no obligation to compensate any Holder for lost income,
interest or other opportunity foregone, or other liability incurred, as a result
of the Company's decision to exclude such Holder from any underwritten
registration if such Holder has not complied with the provisions of this Section
5 in all material respects following 5 business days' written notice of
non-compliance and the Company's decision to exclude such Holder.
6. Selection of Underwriters. The Holders of Registrable Securities covered
by the Shelf Registration Statement who desire to do so may sell the securities
covered by such Shelf Registration in an underwritten offering. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
(a) Rule 144 and Rule 144A. For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the Exchange Act and any
Registrable Securities remain outstanding, the Company covenants that it will
file the
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reports required to be filed by them under the Securities Act and Section 13(a)
or 15(d) of the Exchange Act and the rules and regulations adopted by the SEC
thereunder, that if it ceases to be so required to file such reports, it will
upon the request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales pursuant to Rule 144
under the Securities Act, (b) deliver such information to a prospective
purchaser as is necessary to permit sales pursuant to Rule 144A under the
Securities Act and will take such further action as any Holder of Registrable
Securities may reasonably request, and (c) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Securities without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such rule may be amended
from time to time, (ii) Rule 144A under the Securities Act, as such rule may be
amended from time to time, or (iii) any similar rules or regulations hereafter
adopted by the SEC. Upon the reasonable request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
(b) No Inconsistent Agreements. The Company has not entered into nor will
the Company on or after the date of this Agreement enter into any agreement
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
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
other issued and outstanding securities under any such agreements.
(c) Guarantors. So long as any Registrable Securities remain outstanding,
the Company shall cause each of its subsidiaries that becomes a guarantor of the
Securities under the Indenture to execute and deliver a counterpart to this
Agreement which subjects such subsidiary to the provisions of this agreements as
a guarantor (all such subsidiaries, the "Guarantors"). Each of the Guarantors
agrees to join the Company in all of its undertakings hereunder to effect the
Exchange Offer for the Exchange Securities (which will be guaranteed by each of
the Guarantors with terms identical to such Guarantors' guaranty of the
Securities) and the filing of any Shelf Registration Statement required
hereunder (including, without limitation, the undertakings in Sections 3 and 4
hereof).
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(d) Amendments and Waivers. Except as permitted in paragraph (c) above, the
provisions of this Agreement, including provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Company and the Majority Holders; provided, however, that no
amendment, modification, or supplement or waiver or consent to the departure
with respect to the provisions of Section 4 hereof shall be effective as against
any Holder of Registrable Securities unless consented to in writing by such
Holder of Registrable Securities.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, telex, telecopier, or any courier guaranteeing overnight delivery (i) if
to a Holder, at the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this Section 7(e),
which address initially is, with respect to the Initial Purchasers, the address
set forth in the Purchase Agreement; and (ii) if to the Company, initially at
the Company's address set forth in the Purchase Agreement and thereafter at such
other address, notice of which is given in accordance with the provisions of
this Section 7(e).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee, at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such
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Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(g) Third Party Beneficiary. Each of the Initial Purchasers shall be a
third party beneficiary of the agreements made hereunder between the Company, on
the one hand, and the Holders, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
PROVISIONS RELATING TO CONFLICTS OF LAWS. Specified times of day refer to New
York City time.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Securities Held by the Company or any of its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Company or
any of their 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.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CHEMICAL LEAMAN CORPORATION
By: /s/ David M. Boucher
-------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Lisa Craig
---------------------------------
Name: Lisa Craig
Title: Vice President
SCHRODER WERTHEIM & CO. INCORPORATED
By: /s/ Eric H. Schless
---------------------------------
Name: Eric H. Schless
Title: Managing Director
S-1
Exhibit A
Form of Opinion of Counsel
1. Each of the Exchange Offer Registration Statement and the Prospectus
(other than the financial statements, notes or schedules thereto and other
financial and statistical information and supplemental schedules included or
referred to therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), complies as to form in all material respects
with the applicable requirements of the Securities Act and the applicable rules
and regulations promulgated under the Securities Act.
2. In the course of such counsel's review and discussion of the contents of
the Exchange Offer Registration Statement and the Prospectus with certain
officers and other representatives of the Company and representatives of the
independent certified public accountants of the Company, but without independent
check or verification or responsibility for the accuracy, completeness or
fairness of the statements contained therein, on the basis of the foregoing
(relying as to materiality to a large extent upon representations and opinions
of officers and other representatives of the Company), no facts have come to
such counsel's attention which cause such counsel to believe that the Exchange
Offer Registration Statement (other than the financial statements, notes and
schedules thereto and other financial and statistical information contained or
referred to therein and the Form T-1, as to which such counsel need express no
belief), at the time the Exchange Offer Registration Statement became effective
and at the time of the consummation of the Exchange Offer, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements contained therein not
misleading, or that the Prospectus (other than the financial statements, notes
and schedules thereto and other financial and statistical information contained
or referred to therein, as to which such counsel need express no belief)
contains any untrue statement of a material fact or omits to state a material
fact necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.