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EXHIBIT 10.38
A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 6, 2001
BY AND AMONG
FRESENIUS MEDICAL CARE
CAPITAL TRUST IV
FRESENIUS MEDICAL CARE AG
FMC TRUST FINANCE S.A.R.L. LUXEMBOURG-III
FRESENIUS MEDICAL CARE HOLDINGS, INC.
FRESENIUS MEDICAL CARE DEUTSCHLAND GMBH
AND
BANC OF AMERICA SECURITIES LLC
DRESDNER KLEINWORT WASSERSTEIN - GRANTCHESTER, INC.
DEUTSCHE BANK ALEX BROWN INC.
MORGAN STANLEY & CO. INCORPORATED
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of June 6, 2001 by and among Fresenius Medical Care Capital
Trust IV, a statutory business trust created under the laws of the State of
Delaware (the "Trust"), Fresenius Medical Care AG, a German corporation (the
"Guarantor"), FMC Trust Finance S.a.r.l. Luxembourg-III, a private limited
company organized under the laws of Luxembourg, Fresenius Medical Care Holdings,
Inc., a corporation organized under the laws of the State of New York, Fresenius
Medical Care Deutschland GmbH, a limited liability company formed under the laws
of Germany (collectively, the "Issuers"), and Banc of America Securities LLC,
Dresdner Kleinwort Wasserstein - Grantchester, Inc., Deutsche Bank Alex Brown
Inc. and Morgan Stanley & Co. Incorporated (each an "Initial Purchaser" and
collectively, the "Initial Purchasers"), each of whom has agreed, severally and
not jointly, to purchase the Trust's 7 7/8% Trust Preferred Securities,
liquidation amount $1,000 per Trust Preferred Security (the "Securities")
pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
May 28, 2001, as amended May 30, 2001 (the "Purchase Agreement"), by and among
the Issuers and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Securities, the Issuers have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchasers set
forth in Section 2 of the Purchase Agreement. Capitalized terms used herein and
not otherwise defined shall have the meanings assigned to them in the Amended
and Restated Declaration of Trust, dated as of June 6, 2001 (the "Declaration"),
among the Trust, the Guarantor and State Street Bank and Trust Company, as
Trustee, relating to the Securities and the Exchange Securities.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Affiliate: As defined in Rule 144 of the Securities Act.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Certificated Securities: Definitive Securities, as defined in
the Declaration.
Closing Date: The date hereof.
Commission: The U.S. Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Securities to be issued in the Exchange
Offer, the Exchange Trust Guarantees, the Exchange Senior Subordinated Notes and
the Exchange Note Guaranties (the Exchange Securities, the Exchange Trust
Guarantees, the Exchange Senior Subordinated Notes and the Exchange Senior
Subordinated Notes, collectively,
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the "Exchange Instruments"), (b) the maintenance of such Exchange Offer
Registration Statement continuously effective and the keeping of the Exchange
Offer open for a period not less than the period required pursuant to Section
3(b) hereof and (c) the delivery by the Trust to the Registrar under the
Declaration of Exchange Securities in the same aggregate liquidation amount as
the aggregate liquidation amount of Securities tendered by Holders thereof
pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and 4(a)
hereof.
Exchange Act: The U.S. Securities Exchange Act of 1934, as
amended.
Exchange Offer: The exchange and issuance by the Trust of an
aggregate liquidation amount of Exchange Securities (which shall be registered
pursuant to the Exchange Offer Registration Statement) equal to the outstanding
liquidation amount of Securities that are tendered by such Holders in connection
with such exchange and issuance.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Securities to certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Securities Act, and pursuant to
Regulation S under the Securities Act.
Exchange Securities: The Trust's 7 7/8% Trust Preferred
Securities (Liquidation Amount $1,000 per Trust Preferred Security) to be issued
pursuant to the Declaration: (i) in the Exchange Offer or (ii) as contemplated
by Section 4 hereof.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Prospectus: The prospectus included in a Registration Statement
at the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated by reference
into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers
relating to (a) an offering of Exchange Securities pursuant to an Exchange Offer
or (b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus included
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therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
Regulation S: Regulation S promulgated under the Securities Act.
Rule 144: Rule 144 promulgated under the Securities Act.
Securities Act: The U.S. Securities Act of 1933, as amended.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Declaration Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Declaration.
Transfer Restricted Securities: Each Security, until the earliest
to occur of (a) the date on which such Security is exchanged in the Exchange
Offer for an Exchange Security which is entitled to be resold to the public by
the Holder thereof without complying with the prospectus delivery requirements
of the Securities Act, (b) the date on which such Security has been disposed of
in accordance with a Shelf Registration Statement (and the purchasers thereof
have been issued Exchange Securities) or (c) the date on which such Security is
distributed to the public pursuant to Rule 144 under the Securities Act (and
purchasers thereof have been issued Exchange Securities) and each Exchange
Security until the date on which such Exchange Security is disposed of by a
Broker-Dealer pursuant to the "Plan of Distribution" contemplated by the
Exchange Offer Registration Statement (including the delivery of the Prospectus
contained therein).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities (each, a "Holder") whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law (after the procedures set forth in Section 6(a)(i) below
have been complied with), the Issuers shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as practicable
after the Closing Date, but in no event later than 150 days after the Closing
Date (such 150th day being the "Filing Deadline"), (ii) use their commercially
reasonable best efforts to cause such Exchange Offer Registration Statement to
become effective at the earliest possible time, but in no event later than 210
days after the Closing Date (such 210th day being the "Effectiveness Deadline"),
(iii) in connection with the foregoing, (A) file all pre-effective amendments to
such Exchange Offer Registration Statement as may be necessary in order to cause
it to become effective, (B) file, if applicable, a post-effective amendment to
such Exchange Offer Registration Statement pursuant to Rule 430A under the
Securities Act and (C) cause all necessary filings, if any, in connection with
the registration and qualification of the Exchange Securities to be made
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under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting (i)
registration of the Exchange Securities to be offered in exchange for the
Securities that are Transfer Restricted Securities and (ii) resales of Exchange
Securities by Broker-Dealers that tendered into the Exchange Offer Securities
that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Securities acquired
directly from the Trust or any of its Affiliates) as contemplated by Section
3(c) below.
(b) The Trust and the Guarantor shall use their respective
commercially reasonable best efforts to cause the Exchange Offer Registration
Statement to be effective continuously, and shall keep the Exchange Offer open
for a period of not less than the minimum period required under applicable
federal and state securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20 business days. The
Trust and the Guarantor shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Exchange Securities shall be included in the Exchange Offer Registration
Statement. The Trust and the Guarantor shall use their respective commercially
reasonable best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 45 business days thereafter (such
45th day being the "Consummation Deadline").
(c) The Trust shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted Securities
that were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Securities
acquired directly from the Trust or any Affiliate of the Trust), may exchange
such Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan
of Distribution" section shall also contain all other information with respect
to such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action letter (available
July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must, therefore, deliver a
prospectus meeting the requirements of the Securities Act in connection with its
initial sale of any Exchange Securities received by such Broker-Dealer in the
Exchange Offer, the Trust and Guarantor shall permit the use of the Prospectus
contained in the Exchange Offer Registration Statement by such Broker-Dealer to
satisfy such prospectus delivery requirement. To the extent necessary to ensure
that the prospectus contained in the Exchange Offer Registration Statement is
available for sales of Exchange Securities by Broker-Dealers, the Trust and the
Guarantor agree to use their respective commercially reasonable best efforts to
keep the Exchange Offer Registration Statement continuously effective,
supplemented, amended and current as required by and subject to the
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provisions of Section 6(a) and (c) hereof and in conformity with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
one year from the Consummation Deadline or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold pursuant thereto. The Trust and the Guarantor shall provide
sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable law (after the Trust and the Guarantor have complied
with the procedures set forth in Section 6(a)(i) below) or (ii) if any Holder of
Transfer Restricted Securities shall notify the Trust within 20 business days
following the Consummation Deadline that (A) such Holder was prohibited by law
or Commission policy from participating in the Exchange Offer or (B) such Holder
may not resell the Exchange Securities 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 by such Holder or (C) such Holder is a Broker-Dealer and holds
Securities acquired directly from the Trust or any of its Affiliates, then the
Trust and the Guarantor shall:
(x) cause to be filed, on or prior to 30 days after the
earlier of (i) the date on which the Trust determines that the Exchange
Offer Registration Statement cannot be filed as a result of clause
(a)(i) above and (ii) the date on which the Trust receives the notice
specified in clause (a)(ii) above, (such earlier date, the "Filing
Deadline"), a shelf registration statement pursuant to Rule 415 under
the Securities Act (which may be an amendment to the Exchange Offer
Registration Statement (the "Shelf Registration Statement")), relating
to all Transfer Restricted Securities, and
(y) shall use their respective commercially reasonable best
efforts to cause such Shelf Registration Statement to become effective
on or prior to 60 days after the Filing Deadline for the Shelf
Registration Statement (such 60th day the "Effectiveness Deadline").
If, after the Trust has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Trust is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) above), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above;
provided that, in such event, the Trust shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Trust and the Guarantor shall use their respective best efforts to
keep any Shelf
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Registration Statement required by this Section 4(a) continuously effective,
supplemented, amended and current as required by and subject to the provisions
of Sections 6(b) and (c) hereof and in conformity with the requirements of this
Agreement, the Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least two years
(as extended pursuant to Section 6(c)(i)) following the Closing Date, or such
shorter period as will terminate when all Transfer Restricted Securities covered
by such Shelf Registration Statement have been sold pursuant thereto.
(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Trust in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Securities Act for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to liquidated
damages pursuant to Section 5 hereof unless and until such Holder shall have
provided all such information. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make the information
previously furnished to the Issuers by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is
not filed with the Commission on or prior to the applicable Filing Deadline,
(ii) any such Registration Statement has not been declared effective by the
Commission on or prior to the applicable Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on or prior to the Consummation Deadline
or (iv) any Registration Statement required by this Agreement is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself declared effective immediately (each such event referred to
in clauses (i) through (iv), a "Registration Default"), then the Issuers hereby
jointly and severally agree to pay to each Holder of Transfer Restricted
Securities affected thereby liquidated damages in an amount equal to $.05 per
week per $1,000 in liquidation amount of Transfer Restricted Securities held by
such Holder for each week or portion thereof that the Registration Default
continues for the first 90-day period immediately following the occurrence of
such Registration Default. The amount of the liquidated damages shall increase
by an additional $.05 per week per $1,000 in liquidation amount of Transfer
Restricted Securities with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of liquidated
damages of $.25 per week per $1,000 in liquidation amount of Transfer Restricted
Securities; provided that the Issuers shall in no event be required to pay
liquidated damages for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein, (1) upon filing of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (ii) above, (3) upon Consummation of the
Exchange Offer, in the case of (iii) above, or (4) upon the filing of a
post-effective amendment to the Registration
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Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
liquidated damages payable with respect to the Transfer Restricted Securities as
a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders
entitled thereto, in the manner provided for the payment of distributions in the
Declaration, on each Distribution Date, as more fully set forth in the
Declaration and the Securities. Notwithstanding the fact that any Securities for
which liquidated damages are due cease to be Transfer Restricted Securities, all
obligations of the Issuers to pay liquidated damages with respect to Securities
shall survive until such time as such obligations with respect to such
Securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Trust and the Guarantor shall (x) comply with all applicable
provisions of Section 6(c) below, (y) use their respective commercially
reasonable best efforts to effect such exchange and to permit the resale of
Exchange Securities by Broker-Dealers that tendered in the Exchange Offer
Securities that such Broker-Dealer acquired for its own account as a result of
its market making activities or other trading activities (other than Securities
acquired directly from the Trust or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer that, in the reasonable opinion of counsel to the Trust
raises a substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Issuers hereby agree to seek a
no-action letter or other favorable decision from the Commission
allowing the Issuers to Consummate an Exchange Offer for such Transfer
Restricted Securities. The Issuers hereby agree to pursue the issuance
of such a decision to the Commission staff level. In connection with the
foregoing, the Trust and the Guarantor hereby agree to take all such
other actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Trust setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of the Trust, prior to the Consummation of the Exchange Offer, a
written representation to the Issuers (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of the Trust,
(B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to
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participate in, a distribution of the Exchange Securities to be issued
in the Exchange Offer and (C) it is acquiring the Exchange Securities in
its ordinary course of business. As a condition to its participation in
the Exchange Offer, each Holder using the Exchange Offer to participate
in a distribution of the Exchange Securities shall acknowledge and agree
that, if the resales are of Exchange Securities obtained by such Holder
in exchange for Securities acquired directly from the Trust or an
Affiliate thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of the
Commission enunciated in Morgan Stanley and Co., Inc. (available June 5,
1991) and Exxon Capital Holdings Corporation (available May 13, 1988),
as interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including, if applicable,
any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers shall provide a supplemental letter to the
Commission (A) stating that the Issuers are registering the Exchange
Offer in reliance on the position of the Commission enunciated in Exxon
Capital Holdings Corporation (available May 13, 1988), Morgan Stanley
and Co., Inc. (available June 5, 1991) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that none of the Issuers has entered into
any arrangement or understanding with any Person to distribute the
Exchange Securities to be received in the Exchange Offer and that, to
the best of the Issuer's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Securities
in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
Exchange Securities received in the Exchange Offer and (C) any other
undertaking or representation required by the Commission as set forth in
any no-action letter obtained pursuant to clause (i) above, if
applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers shall:
(i) comply with all the provisions of Section 6(c) below and use
their respective commercially reasonable best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities
being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the
Issuers pursuant to Section 4(b) hereof), and pursuant thereto the
Issuers shall prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the
Securities Act, which form shall be available for the sale of the
Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and otherwise in
accordance with the provisions hereof.
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(ii) issue, upon the request of any Holder or purchaser of
Securities covered by any Shelf Registration Statement contemplated by
this Agreement, Exchange Securities having an aggregate liquidation
amount equal to the aggregate liquidation amount of Securities sold
pursuant to the Shelf Registration Statement and surrendered to the
Trust for cancellation; the Trust shall register Exchange Securities on
the Shelf Registration Statement for this purpose and issue the Exchange
Securities to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall
designate.
(iii) make available, at reasonable times, for inspection by each
Holder eligible to include Securities in the Shelf Registration
Statement and any attorney or accountant retained by such Holders, all
financial and other records, pertinent corporate documents of the
Issuers and cause the respective Issuers' officers, directors and
employees to supply all information reasonably requested by any such
Holder, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness;
(iv) if requested by any Holders eligible to include Securities
in the Shelf Registration Statement in connection with a sale or any
Affiliated Market Maker, promptly include in any Registration Statement
or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Issuers are
notified of the matters to be included in such Prospectus supplement or
post-effective amendment.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Issuers
shall:
(i) use their respective commercially reasonable best efforts to
keep such Registration Statement continuously effective and provide all
requisite financial statements for the period specified in Sections 3 or
4 of this Agreement, as applicable. Upon the occurrence of any event
that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain an untrue statement of material fact or
omit to state any material fact necessary to make the statements therein
not misleading or (B) not to be effective and usable for the exchange or
resale of Transfer Restricted Securities during the period required by
this Agreement, the Issuers shall file promptly an appropriate amendment
to such Registration Statement curing such defect, and, if Commission
review is required, use their respective best efforts to cause such
amendment to be declared effective as soon as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Sections 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required
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Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act, and to comply fully with Rules 424,
430A and 462, as applicable, under the Securities Act in a timely
manner; and comply with the provisions of the Securities Act with
respect to the disposition of all securities, instruments or exchange
instruments, as the case may be, covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(which advice shall be furnished by the issuance of a press release or
similar public announcement and through the Depository Trust Corporation
or any successor clearing agent), (B) of any request by the Commission
for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the
Securities Act or of the suspension by any state securities commission
of the qualification of the Exchange Securities or the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making of
any additions to or changes in the Registration Statement in order to
make the statements therein not misleading, or that requires the making
of any additions to or changes in the Prospectus in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
or any state securities commission or other regulatory authority shall
issue an order suspending the qualification or exemption from
qualification of the Exchange Securities or the Transfer Restricted
Securities under state securities or Blue Sky laws, the Issuers shall
use their respective best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Exchange Securities or Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) furnish to each Holder in connection with such exchange or
sale, if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
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Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders in connection with
such sale, if any, for a period of at least five Business Days, and the
Trust will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) to which such
Holders shall reasonably object within five Business Days after the
receipt thereof. A Holder shall be deemed to have reasonably objected to
such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading or fails to
comply with the applicable requirements of the Securities Act;
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each Holder in connection with such
exchange or sale, if any, make the respective Issuers' representatives
available for discussion of such document and other customary due
diligence matters, and include such information in such document prior
to the filing thereof as such Holders may reasonably request;
(vii) furnish to each Holder in connection with such exchange or
sale, without charge, at least one copy of the Registration Statement,
as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(viii) deliver to each Holder without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the
Issuers hereby consent to the use (in accordance with law) of the
Prospectus and any amendment or supplement thereto by each selling
Holder in connection with the offering and the sale of the Exchange
Securities or the Transfer Restricted Securities covered by the
Prospectus or any amendment or supplement thereto;
(ix) upon the request of any Holder, enter into such agreements
(including underwriting agreements) and make such representations and
warranties and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer
Restricted Securities pursuant to any applicable Registration Statement
contemplated by this Agreement as may be reasonably requested by any
Holder in connection with any sale or resale pursuant to any applicable
Registration Statement. In such connection, the Issuers shall:
(A) upon request of any Holder, furnish (or in the case
of paragraphs (2) and (3), use their commercially reasonable
best efforts to cause to be furnished) to each Holder, upon
Consummation of the Exchange Offer or upon the effectiveness of
the Shelf Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on
behalf of the Issuers by (x) the President or any Vice
President, or in the case of the Guarantor and
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DGmbH (as defined in the Purchase Agreement) members of
the board (Vorstand or Geschaftsfuhrung), as the case
may be, and (y) a principal financial or accounting
officer of such Issuer, confirming, as of the date
thereof, the matters set forth in Sections 6(y)(iv),
9(a) and 9(b) of the Purchase Agreement and such other
similar matters as such Holders may reasonably request;
(2) an opinion, dated the date of Consummation
of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be, of
counsel for the Issuers covering matters similar to
those set forth in paragraph (f) of Section 9 of the
Purchase Agreement and as to the effectiveness of the
Registration Statement, the absence of stop orders with
respect thereto and compliance of the Registration
Statement as to form with the requirements of the
Securities Act and the TIA and in any event including a
statement substantially to the effect that such counsel
has participated in conferences with officers and other
representatives of the Issuers, representatives of the
independent public accountants for the Guarantor
regarding the Registration Statement and the Prospectus
contained therein and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying as
to materiality to the extent such counsel deems
appropriate upon the statements of officers and other
representatives of the Trust and the Guarantor) and
without independent check or verification), no facts
came to such counsel's attention that caused such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration
Statement, as of the date of 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 therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing,
such counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the
financial statements, notes and schedules and other
financial data included in any Registration Statement
contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated the date
of Consummation of the Exchange Offer, or as of the date
of effectiveness of the Shelf
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Registration Statement, as the case may be, from the
Guarantor's independent accountants, in the customary
form and covering matters of the type customarily
covered in comfort letters to underwriters in connection
with underwritten offerings, and affirming the matters
set forth in the comfort letters delivered pursuant to
Section 9(e) of the Purchase Agreement.
(B) deliver such other documents and certificates as may
be reasonably requested by the selling Holders to such Persons
to evidence compliance with the matters covered in clause (A)
above and with any customary conditions contained in the any
agreement entered into by the Issuers pursuant to this clause
(ix);
(x) prior to any public offering of Exchange Securities or
Transfer Restricted Securities, cooperate with the selling Holders and
their counsel in connection with the registration and qualification of
the Exchange Securities or Transfer Restricted Securities under the
state securities or Blue Sky laws of such jurisdictions within the
United States as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Securities or Transfer Restricted
Securities covered by the applicable Registration Statement; provided,
however, that none of the Issuers shall be required to register or
qualify as a foreign corporation where it is not now so qualified or to
take any action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions relating to
the Registration Statement, in any jurisdiction where it is not now so
subject;
(xi) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of global certificates representing
Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and to register such Transfer Restricted Securities
in such denominations and such names as the selling Holders may request
at least two Business Days prior to such sale of Transfer Restricted
Securities;
(xii) use their respective commercially reasonable best efforts
to cause the disposition of the Transfer Restricted Securities covered
by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in
clause (x) above;
(xiii) provide a CUSIP number for all Exchange Securities or
Transfer Restricted Securities, as the case may be, not later than the
effective date of a Registration Statement covering such Transfer
Restricted Securities and provide the Trustee under the Declaration with
printed certificates for the Transfer Restricted Securities which are in
a form eligible for deposit with the Depository Trust Company;
(xiv) otherwise use their respective commercially reasonable
best efforts to comply with all applicable rules and regulations of the
Commission, and make generally
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available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 to the Securities Act
(which need not be audited) covering a twelve-month period beginning
after the effective date of the Registration Statement (as such term is
defined in paragraph (c) of Rule 158 under the Securities Act);
(xv) cause the Declaration and the Indenture to be qualified
under the TIA not later than the effective date of the first
Registration Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders to effect such
changes to the Declaration and the Indenture as may be required for such
Declaration or Indenture to be so qualified in accordance with the terms
of the TIA; and execute and use their best efforts to cause the Trustee
to execute, all documents that may be required to effect such changes
and other forms and documents required to be filed with the Commission
to enable such Declaration or Indenture to be so qualified in a timely
manner;
(xvi) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act; and
(xvii) to use their commercially reasonable best efforts to
cause the Exchange Securities to be listed on the Luxembourg Stock
Exchange.
(d) Restrictions on Holders. Each Holder agrees by acquisition of
a Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Trust of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"Suspension Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Trust that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "Recommencement
Date"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Trust with more
recently dated Prospectuses or (ii) deliver to the Trust (at the Trust's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Sections
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' performance of or
compliance with this Agreement will be borne by the Guarantor, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses;
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(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Securities to be issued in the Exchange Offer and
printing of Prospectuses, messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Issuers; (v) all application and
filing fees in connection with a listing of the Exchange Securities on the
Luxembourg Stock Exchange; and (vi) all fees and disbursements of independent
certified public accountants of the Trust and the Guarantor (including the
expenses of any special audit and comfort letters required by or incident to
such performance).
The Trust will, in any event, bear its and the Guarantor's
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Trust or the Guarantor.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Guarantor will reimburse
the Initial Purchasers and the Holders of Transfer Restricted Securities who are
tendering Securities into the Exchange Offer and/or selling or reselling
Securities or Exchange Securities pursuant to the "Plan of Distribution"
contained in the Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one counsel, who shall be Shearman & Sterling, 9 Appold Street, London EC2A
2AP, unless another firm shall be chosen by the Holders of a majority in
liquidation amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuers agree, jointly and severally, to indemnify and
hold harmless each Holder, its directors, officers and each Person, if any, who
controls such Holder (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act), from and against any and all losses, claims,
damages, liabilities, judgments, (including without limitation, any legal or
other expenses incurred in connection with investigating or defending any
matter, including any action that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Trust to any Holder or any prospective purchaser of Exchange
Securities or registered Securities, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by an untrue
statement or omission or alleged untrue statement or omission that is based upon
information relating to any of the Holders furnished in writing so the Trust by
any of the Holders.
(b) Each Holder of Transfer Restricted agrees, severally and not
jointly, to indemnify and hold harmless the Issuers, and their respective
directors and officers, and each person, if any, who controls (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
any Issuer, to the same extent as the foregoing indemnity from the Issuers
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set forth in section (a) above, but only with reference to information relating
to such Holder furnished in writing to the Trust by such Holder expressly for
use in any Registration Statement. In no event shall any Holder, its directors,
officers or any Person who controls such Holder be liable or responsible for any
amount in excess of the amount by which the total amount received by such Holder
with respect to its sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds (i) the amount paid by such Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Holder, its directors, officers or any Person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying person") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and,
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 8(a) and 8(b), a Holder shall not be required to assume the
defense of such action pursuant to this Section 8(c), but may employ separate
counsel and participate in the defense thereof, but the fees and expenses of
such counsel, except as provided below, shall be at the expense of the Holder).
Any indemnified party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of
such counsel shall be the expense of the indemnified party unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the indemnifying party, (ii) the indemnifying party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
indemnified party or (iii) the named parties to any such action (including any
impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 8(a), and by
the Guarantor, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with the indemnifying
party's written consent or (ii) effected without the indemnifying party's
written consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to the date of such settlement, the indemnifying party shall have failed to
comply with such reimbursement request. No indemnifying party shall, without the
prior
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written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action 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 the indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Issuers, on
the one hand, and the Holders, on the other hand, from their sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause 8(d)(i) is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause 8(d)(i) above but also the
relative fault of the Issuers, on the one hand, and of the Holder, on the other
hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Issuers, on the one hand,
and of the Holder, 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 Issuers, on the one hand, or by the Holder, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Issuers and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder 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. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the
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respective liquidation amount of Transfer Restricted Securities held by each
Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Issuers agree with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which the
Guarantor (i) is not subject to Section 13 or 15(d) of the Exchange Act, to make
available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any
prospective purchaser of such Transfer Restricted Securities designated by such
Holder or beneficial owner, the information required by Rule 144A(d)(4) under
the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Issuers acknowledge and agree that any failure
by the Issuers to comply with their respective obligations under Sections 3 and
4 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 will 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 Issuers' obligations under
Sections 3 and 4 hereof. The Issuers further agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. None of the Issuers will, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof. Nothing in this
Agreement shall preclude or limit the Issuers from (i) conducting the Exchange
Offer pursuant to a single registration statement relating to both (A) the
Exchange Offer and (B) a substantially identical exchange offer relating to up
to Euro 300 million of euro-denominated trust preferred securities (and related
trust guarantees, senior subordinated notes and note guaranties) having
substantially identical terms to the Securities (other than this currency, their
price in the initial offering, their coupon and the identity of the
issuer-trust) ("Euro Exchange Offer") or (ii) preparing and filing a single
shelf registration statement with respect to both the Preferred Securities and
the additional trust preferred securities described in the preceding clause
(i)(B), and no actions taken pursuant to or as contemplated by this sentence
will be deemed inconsistent with the rights granted to the Holders in this
Agreement, it being understood that in the event that it is impracticable to
conduct the Exchange Offer and the Euro Exchange Offer pursuant to a single
registration statement, each of the Exchange Offer and Euro Exchange Offer will
proceed separately. Except for the agreement dated as of March 2, 2000 between
the Guarantor and Persons who acquired non-voting Preference shares of the
Guarantor in the "Franconia" transaction, none of the Issuers is a party to any
agreement granting any registration rights with respect to its securities to any
person. The rights granted to the Holders hereunder do not in any
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way conflict with and are not inconsistent with the rights granted to the
holders of the Issuer's securities of the Issuers under any agreement in effect
on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may
not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case of
Section 5 hereof and this Section 10(c)(i), the Trust has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Trust has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by the
Trust or its Affiliates). Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose Transfer Restricted Securities are being tendered pursuant to the
Exchange Offer, and that does not affect directly or indirectly the rights of
other Holders whose Transfer Restricted Securities are not being tendered
pursuant to such Exchange Offer, may be given by the Holders of a majority of
the outstanding principal amount of Transfer Restricted Securities subject to
such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery;
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Declaration, with a copy to the Registrar under
the Declaration; and
(ii) if to the Issuers:
Fresenius Medical Care Capital Trust IV,
c/o Fresenius Medical Care Holdings, Inc.
95 Hayden Avenue,
Lexington, MA 02173
with a copy to:
Fresenius Medical Care AG,
Else-Kroner Str 1,
61346 Bad Homburg v.d. H,
Telefax: (011-49-6172-609-2422),
Attention: Law Department
and to:
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O'Melveny & Myers LLP
133 East 53rd Street
New York NY 1022-4611
Fax: 212 326 2061
Ulrich Wagner, Esq.
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 receipt 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 Declaration.
(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, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Transfer Restricted
Securities in violation of the terms hereof or of the Purchase Agreement, the
Declaration or applicable law. If any transferee of any Holder shall acquire
Transfer Restricted Securities in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement, including
the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(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, WITHOUT REGARD
TO THE CONFLICT OF LAW RULES THEREOF.
(j) 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.
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(k) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
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FRESENIUS MEDICAL CARE
CAPITAL TRUST IV
By: /s/Ben Lipps
------------------------------------
Name: Ben Lipps
Title: Company Trustee
By: /s/Karl-Dieter Schwab
------------------------------------
Name: Karl-Dieter Schwab
Title: Company Trustee
By: /s/Josef Dinger
------------------------------------
Name: Josef Dinger
Title: Company Trustee
FRESENIUS MEDICAL CARE AG
By: /s/Emanuele Gatti
------------------------------------
Name: Emanuele Gatti
Title: Member of the Management Board
By: /s/Rainer Runte
------------------------------------
Name: Rainer Runte
Title: General Counsel and Sr. Vice Pres.
FMC TRUST FINANCE S.a.r.l.
LUXEMBOURG-III
By: /s/Gabriele Dux
------------------------------------
Name: Gabriele Dux
Title: Director
24
FRESENIUS MEDICAL CARE
DEUTSCHLAND GMBH
By: /s/Emanuele Gatti
------------------------------------
Name: Emanuele Gatti
Title: Managing Director
By: /s/Karl-Dieter Schwab
------------------------------------
Name: Karl-Dieter Schwab
Title: Procurist
FRESENIUS MEDICAL CARE
HOLDINGS, INC.
By: /s/Ben Lipps
-------------------------------------------
Name: Ben Lipps
Title: Chief Executive Officer
25
BANC OF AMERICA SECURITIES LLC
By:/s/Raymond A. Cubero
---------------------------------------
Raymond A. Cubero
Managing Director
DRESDNER KLEINWORT WASSERSTEIN-GRANTCHESTER, INC.
By/s/James C. Kingsberg
----------------------------------------
James C. Kingsberg
Acting on behalf of themselves and the
several Initial Purchasers
26
EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER REGISTRATION STATEMENT
To: Banc of America LLC
9 West 57th Street
New York NY 10019
Attention:
Fax:
From: Fresenius Medical Care Capital Trust IV
Re: 7 7/8% Trust Preferred Securities due 2001
Date: ______, 200_
For your information only (NO ACTION REQUIRED):
Today, _________, 200__, we filed [an Exchange Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within ___
business days of the date hereof.