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Exhibit 10.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of February 26, 1998
Among
MCMS, INC.
as Issuer
and
BT ALEX. BROWN INCORPORATED
as Initial Purchaser
9 3/4% Senior Subordinated Notes due 2008 and
Floating Interest Rate Subordinated Term Securities due 2008
and 12 1/2% Senior Exchangeable
Preferred Stock
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
February 26, 1998, among MCMS, INC., an Idaho corporation (f/k/a Micron Custom
Manufacturing Services, Inc.) (the "Company" or "Issuer"), as issuer, and BT
ALEX. BROWN INCORPORATED, as Initial Purchaser (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of February 19, 1998, among the Issuer and the Initial
Purchaser (the "Purchase Agreement"), which provides for, among other things,
the sale by the Company to the Initial Purchaser of $145,000,000 aggregate
principal amount of the Company's 9 3/4% Senior Subordinated Notes due 2008 (the
"Fixed Rate Notes"), the sale by the Company to the Initial Purchaser of
$30,000,000 aggregate principal amount of the Company's Floating Interest Rate
Subordinated Term Securities (the "Floating Rate Notes," and together with the
Fixed Rate Notes, the "Notes") and the sale by the Company to the Initial
Purchaser of 250,000 shares of 12 1/2% Senior Exchangeable Preferred Stock with
a liquidation preference of $100.00 per share (the "Preferred Stock" and,
together with the Notes, the "Securities"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Issuer has agreed to provide
the registration rights set forth in this Agreement for the benefit of the
Initial Purchaser and any subsequent holder or holders of each of the Notes and
the Preferred Stock. The execution and delivery of this Agreement is a condition
to the Initial Purchaser's obligation to purchase the Securities under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Dividends: See Section 4 hereof.
Additional Interest: See Section 4 hereof.
Advice: See Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
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Certificate of Designation: Means the certificate of designation
governing the 12 1/2% Senior Exchangeable Preferred Stock of the Company.
Closing: See Purchase Agreement.
Company: See the introductory paragraph hereto.
Debenture Trustee: The trustee under the Exchange Indenture and the
trustee under any indenture governing the Debentures and Private Exchange
Debentures.
Debentures: The 12 1/2% Exchange Debentures of the Company issuable
under the Exchange Indenture and the Series B Exchange Debentures, if any.
Effectiveness Date: The 120th day after the Issue Date; provided,
however, that with respect to any Shelf Registration other than a Shelf
Registration if no Exchange Offer Registration Statement has been filed, the
Effectiveness Date shall be the 60th day after the applicable Registration
Statement with respect thereto is filed.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Debentures: The 12 1/2% Exchange Debentures of the Company
issuable under the Exchange Indenture.
Exchange Indenture: The Exchange Indenture, dated February 26, 1998,
between the Issuer and United States Trust Company of New York, as Debenture
Trustee, pursuant to which the Debentures may be issued, as the same may be
amended or supplemented from time to time in accordance with the terms hereof.
Exchange Notes: See Section 2 hereof.
Exchange Preferred Stock: See Section 2 hereof.
Exchange Offer: See Section 2 hereof.
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Exchange Offer Registration Statements: See Section 2 hereof.
Exchange Offers: See Section 2 hereof.
Exchange Securities: See Section 2 hereof.
Filing Date: (i) with respect to the Exchange Offer Registration
Statement, the 60th day after the Issue Date and (ii) with respect to any Shelf
Registration Statement, (A) if no Exchange Offer Registration Statement has been
filed by the Issuer pursuant to this Agreement, the 60th day after the Issue
Date and (B) in each other case (which may be applicable notwithstanding the
consummation of the Exchange Offer), the 120th day after the delivery of a Shelf
Notice.
Fixed Rate Notes: See the introductory paragraphs hereto.
Floating Rate Notes: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Security or Registrable
Securities and/or a Debenture or Debentures.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of February 26, 1998, between the
Issuer and United States Trust Company of New York, as Trustee, pursuant to
which the Notes are being issued, as the same may be amended or supplemented
from time to time in accordance with the terms thereof.
Initial Purchaser: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(m) hereof.
Issue Date: February 26, 1998, the date of original issuance of the
Securities.
Issuer: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
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Notes: See the introductory paragraphs hereto.
Offering Memorandum: The final offering memorandum of the Company
dated February 19, 1998, in respect of the offering of the Securities.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, trustee, corporation, partnership, joint
stock company, trust, unincorporated association, union, business association,
firm or other legal entity.
Preferred Stock: See the introductory paragraphs hereto.
Private Exchange: See Section 2 hereof.
Private Exchange Debentures: Debentures which, if the Company
exchanges Registrable Preferred Stock for Exchange Debentures prior to a
Registration Statement with respect to the Preferred Stock being declared
effective by the SEC, the Company shall issue and deliver to the Initial
Purchaser pursuant to the third paragraph of Section 2(b) in exchange for
Exchange Debentures which are held by the Initial Purchaser and are reasonably
likely to be determined to have the status of an unsold allotment in an initial
distribution. The Private Exchange Debentures shall be issued pursuant to the
same indenture as the Series B Exchange Debentures.
Private Exchange Notes: See Section 2 hereof.
Private Exchange Preferred Stock: See Section 2 hereof.
Private Exchange Securities: See Section 2 hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act and any term sheet filed pursuant to Rule
434 under the Securities Act), as amended or supplemented by any prospectus
supplement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by refer-
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ence or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraphs hereto.
Records: See Section 5(m) hereof.
Registrable Notes: Each Note upon its original issuance and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof
is applicable upon original issuance and at all times subsequent thereto and
each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until (i) a Registration Statement (other than, with respect
to any Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the SEC and such Note,
Exchange Note or such Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii) such
Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or
Exchange Notes that may be resold without complying with the prospectus delivery
requirements under the Securities Act, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note, as the case
may be, may be resold without restriction pursuant to Rule 144 under the
Securities Act.
Registrable Preferred Stock: Each share of Preferred Stock upon its
original issuance and at all times subsequent thereto, each share of Exchange
Preferred Stock as to which Section 2(c)(iv) hereof is applicable upon original
issuance and at all times subsequent thereto and each share of Private Exchange
Preferred Stock upon original issuance thereof and at all times subsequent
thereto, until (i) a Registration Statement (other than, with respect to any
Exchange Preferred Stock as to which Section 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Preferred Stock, Exchange
Preferred Stock or Private Exchange Preferred Stock has been declared effective
by the SEC and such Preferred Stock, Exchange Preferred Stock or such Private
Exchange Preferred Stock, as the case may be, has been disposed of in accordance
with such effective Registration Statement, (ii) such Preferred Stock has been
exchanged pursuant to the Exchange Offer for Exchange Preferred Stock that may
be resold without complying with the prospectus delivery requirements under the
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Securities Act, (iii) such Preferred Stock, Exchange Preferred Stock or Private
Exchange Preferred Stock, as the case may be, ceases to be outstanding or (iv)
such Preferred Stock, Exchange Preferred Stock or Private Exchange Preferred
Stock, as the case may be, may be resold without restriction pursuant to Rule
144 under the Securities Act.
Registrable Securities: The Registrable Notes and the Registrable
Preferred Stock.
Registrar: The registrar under the Certificate of Designation.
Registration Statement: Any registration statement of the Issuer
that covers any of the Notes, the Exchange Notes or the Private Exchange Notes,
the Preferred Stock, the Exchange Preferred Stock or Private Exchange Preferred
Stock, or Debentures filed with the SEC under the Securities Act, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits, and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of the issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
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Series B Exchange Debentures: See Section 2 hereof.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Agent: The transfer agent under the Certificate of
Designation.
Trustee: The trustee under the Indenture and the trustee under any
indenture governing the Exchange Notes and Private Exchange Notes.
Underwritten registration or underwritten offering: A registration
in which securities of the Issuer are sold to an underwriter for reoffering to
the public.
2. Exchange Offer
(a) The Issuer shall file with the SEC, no later than the Filing
Date with respect to the Exchange Offer Registration Statement, Registration
Statements (each an "Exchange Offer Registration Statement") on appropriate
registration forms with respect to registered offers (with respect to each of
the Notes and the Preferred Stock, an "Exchange Offer" and together the
"Exchange Offers") to exchange any and all of each of the Registrable Notes and
Registrable Preferred Stock for a like aggregate principal amount of Notes (the
"Exchange Notes") and aggregate liquidation preference of Preferred Stock (the
"Exchange Preferred Stock," and together with the Exchange Notes, the "Exchange
Securities"), as the case may be, of the Company that are identical in all
material respects to each of the respective Securities, except that the Exchange
Securities shall contain no restrictive legend thereon. The Exchange Notes shall
be entitled to the benefits of the Indenture or a trust indenture which is
identical in all material respects to the Indenture (other than such changes to
the Indenture or any such identical trust indenture as are necessary to comply
with the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer Registration Statement with respect to the Registrable Preferred
Stock will also register any deemed offering of the Debentures by the issuer
pursuant to the Exchange Offer; provided that if the Company exchanges the
Reg-
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istrable Preferred Stock for the Exchange Debentures at any time prior to a
Registration Statement with respect to the Preferred Stock being declared
effective by the SEC, then the Issuer shall file with the SEC, no later than the
Filing Date with respect to the Exchange Offer Registration Statement, a
Registration Statement on an appropriate registration form with respect to a
registered offer to exchange any and all of the Exchange Debentures for a like
aggregate principal amount of new Exchange Debentures (the "Series B Exchange
Debentures"), except that the Series B Exchange Debentures shall contain no
restrictive legend thereon and shall be entitled to the benefits of the Exchange
Indenture. In the event the Issuer is so required to register and exchange the
Exchange Debentures for Series B Exchange Debentures, the Issuer shall be
subject to all covenants, warranties and obligations under this Agreement, with
respect to the Series B Exchange Debentures, to which it would otherwise be
subject with respect to the Registrable Notes, Exchange Notes and Private
Exchange Notes, except that the Debentures will be governed by the Exchange
Indenture. The Exchange Offers shall comply with all applicable tender offer
rules and regulations under the Exchange Act and other applicable law. The
Issuer shall use its reasonable best efforts to (x) cause each Exchange Offer
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep each Exchange Offer open for at least 20
business days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) consummate each
Exchange Offer on or prior to the 45th day following the date on which the
applicable Exchange Offer Registration Statement is declared effective by the
SEC. If, after an Exchange Offer Registration Statement is initially declared
effective by the SEC, that Exchange Offer or the issuance of the Exchange Notes
or Exchange Preferred Stock thereunder, as the case may be, is interfered with
by any stop order, injunction or other order or requirement of the SEC or any
other governmental agency or court, that Exchange Offer Registration Statement
shall be deemed not to have become effective for purposes of this Agreement.
Each Holder that participates in an Exchange Offer will be required,
as a condition to its participation in the Exchange Offer, to represent to the
Company in writing (which may be contained in the applicable letter of
transmittal) that any Exchange Securities to be received by it will be acquired
in the ordinary course of its business, that at the time of the consummation of
the Exchange Offer such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Exchange Securities in
violation of the
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provisions of the Securities Act, that such Holder is not an affiliate of the
Company within the meaning of the Securities Act and that such Holder reasonably
believes such Holder is not acting on behalf of any Person that could not
truthfully make the foregoing representations.
Upon consummation of an Exchange Offer in accordance with this
Section 2, the provisions of this Agreement shall continue to apply, mutatis
mutandis, solely with respect to Registrable Securities that are Private
Exchange Securities, Exchange Securities as to which Section 2(c)(iv) is
applicable and Exchange Securities held by Participating Broker-Dealers (as
defined), and the Issuer shall have no further obligation to register
Registrable Securities (other than Private Exchange Securities and other than in
respect of any Exchange Securities as to which clause 2(c)(iv) hereof applies)
pursuant to Section 3 hereof.
Other than in connection with a deemed offering of the Debentures,
or a required exchange of Exchange Debentures for Series B Exchange Debentures,
required by this Section 2, no securities other than the Exchange Securities
shall be included in the Exchange Offer Registration Statement.
(b) The Issuer shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchaser, which shall contain a summary
statement of the positions taken or policies made by the staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of any
Exchange Securities received by such broker-dealer in any Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or policies
represent the prevailing views of the staff of the SEC. Such "Plan of
Distribution" section shall also expressly permit, to the extent permitted by
applicable policies and regulations of the SEC, the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including, to the extent permitted by applicable policies and regulations of the
SEC, all Participating Broker-Dealers, and include a statement describing the
means by which Participating Broker-Dealers may resell the Exchange Securities
in compliance with the Securities Act.
The Issuer shall use its reasonable best efforts to keep each
Exchange Offer Registration Statement effective and
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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 is
necessary to comply with applicable law in connection with any resale of the
Exchange Securities covered thereby; provided, however, that such period shall
not exceed 180 days after consummation of the Exchange Offer (or such longer
period if extended by the last paragraph of Section 5 herein)) (the "Applicable
Period").
If, prior to consummation of the Exchange Offers, the Initial
Purchaser holds any Securities acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, the Company upon the request of the Initial Purchaser shall
simultaneously with the delivery of the Exchange Notes or Exchange Preferred
Stock, as the case may be, in the Exchange Offer, issue and deliver to the
Initial Purchaser, in exchange (each, a "Private Exchange") for such Notes or
Preferred Stock, as the case may be, held by the Initial Purchaser, a like
principal amount or liquidation preference, as the case may be, of Notes (the
"Private Exchange Notes") or Preferred Stock (the "Private Exchange Preferred
Stock," and together with the Private Exchange Notes, the "Private Exchange
Securities"), as the case may be, of the Company that are identical in all
material respects to the Exchange Notes or Exchange Preferred Stock, as the case
may be, except for the placement of a restrictive legend on such Private
Exchange Securities. The Private Exchange Notes shall be issued pursuant to the
same indenture as the Exchange Notes. Each of the Private Exchange Securities
shall bear the same CUSIP number as the applicable Exchange Securities.
Interest on the Exchange Notes and any Private Exchange Notes will
accrue from (A) the later of (i) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (ii) if the
Notes are surrendered for exchange on a date in a period which includes the
record date for an interest payment date to occur on or after the date of such
exchange and as to which interest will be paid, the date on such interest
payment date or (B), if no interest has been paid on the Notes, from the Issue
Date. Dividends on the Exchange Preferred Stock and any Private Exchange
Preferred Stock will accumulate from (A) the later of (i) the last dividend
payment date on which dividends were paid on the Preferred Stock surrendered in
exchange therefor or, (ii) if the Preferred Stock is surrendered for exchange on
a date in a period which includes the record date for a dividend payment to
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occur on or after the date of such exchange and as to which a dividend will be
paid, the date of such dividend payment date or (B) if no dividends have been
paid on the Preferred Stock, from the Issue Date.
In connection with each of the Exchange Offers, the Issuer shall:
(1) mail, or cause to be mailed, to each Holder of record entitled
to participate in the Exchange Offer a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) use their best efforts to keep the Exchange Offer open for not
less than 20 business days after the date that notice of the Exchange
Offer is mailed to Holders (or longer if required by applicable law);
(3) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(4) permit Holders to withdraw tendered Notes or Preferred Stock, as
the case may be, at any time prior to the close of business, New York
time, on the last business day on which the applicable Exchange Offer
shall remain open; and
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the applicable Exchange
Offer and the applicable Private Exchange, if any, the Issuer shall:
(1) accept for exchange all Registrable Notes or Registrable
Preferred Stock, as the case may be, validly tendered and not validly
withdrawn pursuant to the applicable Exchange Offer and the applicable
Private Exchange, if any;
(2) deliver to the Transfer Agent for cancellation all Registrable
Preferred Stock or portions thereof so accepted for exchange by the
Issuer, and cause the Transfer Agent to countersign and deliver promptly
to each Holder of Registrable Preferred Stock shares of Exchange Preferred
Stock or Private Exchange Preferred Stock, as the
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case may be, equal in liquidation preference to the Registrable Preferred
Stock of such Holder so accepted for exchange; and
(3) deliver to the Trustee for cancellation all Registrable Notes so
accepted for exchange and cause the Trustee to authenticate and deliver
promptly to each Holder Registrable Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
securities of such Holder so accepted for exchange.
Each Exchange Offer and Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the SEC, (ii) no action or proceeding shall have been instituted or
threatened in any court or by any governmental agency which might materially
impair the ability of the Issuer to proceed with the Exchange Offer or the
Private Exchange, and no material adverse development shall have occurred in any
existing action or proceeding with respect to the Issuer and (iii) all
governmental approvals shall have been obtained, which approvals the Issuer
deems necessary for the consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture and which, in either case, has been qualified under the TIA or
is exempt from such qualification and shall provide that (a) the Exchange Notes
shall not be subject to the transfer restrictions set forth in the Indenture and
(b) the Private Exchange Notes shall be subject to the transfer restrictions set
forth in such indenture. The Indenture or such indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent
together on all matters as one class and that none of the Exchange Notes, the
Private Exchange Notes or the Notes will have the right to vote or consent as a
separate class on any matter. The Certificate of Designation shall provide that
the Exchange Preferred Stock, the Private Exchange Preferred Stock and the
Preferred Stock shall vote and consent together on all matters as one class and
that none of the Exchange Preferred Stock, the Private Exchange Preferred Stock
or the Preferred Stock will have the right to vote or consent as a separate
class on any matter.
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(c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuer is not permitted to effect
the Exchange Offers, (ii) the Exchange Offers are not consummated within 180
days of the Issue Date, (iii) any holder of any Private Exchange Securities so
requests in writing to the Company within 60 days after the consummation of the
applicable Exchange Offer, or (iv) in the case of any Holder that participates
in either of the Exchange Offers, such Holder does not receive the applicable
Exchange Securities on the date of the exchange that may be sold without
restriction under state and federal securities laws (other than due solely to
the status of such Holder as an affiliate of the Company within the meaning of
the Securities Act), then in the case of each of clauses (i) to and including
(iv) of this sentence, the Company shall promptly deliver to the Holders and the
Trustee and/or the Transfer Agent and Registrar, as applicable, written notice
thereof (the "Shelf Notice") and shall file a Shelf Registration pursuant to
Section 3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Issuer shall file with the SEC a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Securities not exchanged in the
Exchange Offer, Private Exchange Securities and Exchange Securities as to which
Section 2(c)(iv) is applicable (the "Initial Shelf Registration"). The Issuer
shall use its best efforts to file with the SEC the Initial Shelf Registration
on or before the applicable Filing Date. The Initial Shelf Registration shall be
on Form S-1 or another appropriate form permitting registration of such
Registrable Securities for resale by Holders in the manner or manners designated
by them (including, without limitation, one or more underwritten offerings). Any
Shelf Registration (as defined herein) will also register any deemed Offering of
the Exchange Debentures pursuant to the resale of Preferred Stock, Exchange
Preferred Stock or Private Exchange Preferred Stock, as the case may be. Other
than with respect to the Exchange Debentures as provided in this Agreement, the
Issuer shall not permit any securities other than the Registrable Securities to
be included in the Initial Shelf Registration or any Subsequent Shelf
Registration (as defined below).
The Issuer shall use its reasonable best efforts to cause the
Initial Shelf Registration to be declared effective
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under the Securities Act on or prior to the Effectiveness Date and to keep the
Initial Shelf Registration continuously effective under the Securities Act until
the date which is two years from the Issue Date (the "Effectiveness Period"), or
such shorter period ending when (i) all Registrable Notes or Registrable
Preferred Stock, as the case may be, covered by the Initial Shelf Registration
have been sold in the manner set forth and as contemplated in the Initial Shelf
Registration or (ii) a Subsequent Shelf Registration covering all of the
Registrable Notes or Registrable Preferred Stock, as the case may be, covered by
and not sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration has been declared effective under the Securities Act; provided,
however, that the Effectiveness Period in respect of the Initial Shelf
Registration shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174 under
the Securities Act and as otherwise provided herein.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Effectiveness Period (other than because of the
sale of all of the securities registered thereunder), the Issuer shall use its
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 60 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" Registration Statement pursuant to Rule 415 covering all of
the Registrable Notes or Registrable Preferred Stock, as the case may be,
covered by and not sold under the Initial Shelf Registration or an earlier
Subsequent Shelf Registration (each, a "Subsequent Shelf Registration"). If a
Subsequent Shelf Registration is filed, the Issuer shall use their best efforts
to cause the Subsequent Shelf Registration to be declared effective under the
Securities Act as soon as practicable after such filing and to keep such
subsequent Shelf Registration continuously effective for the remainder of the
Effectiveness Period. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuer shall promptly supplement
and amend any Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the
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Holders of a majority in aggregate principal amount of the Registrable Notes, in
the case of Registrable Notes, or a majority in aggregate liquidation preference
of the Registrable Preferred Stock, in the case of the Registrable Preferred
Stock, covered by such Registration Statement or by any underwriter of such
Registrable Securities.
4. Additional Interest and Additional Dividends
(a) The Issuer and the Initial Purchaser agree that the Holders will
suffer damages if the Issuer fails to fulfill its obligations under Section 2 or
Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Company agrees to pay, as
liquidated damages, additional interest on the Notes ("Additional Interest") and
additional dividends on the Preferred Stock ("Additional Dividends") under the
circumstances and to the extent set forth below (each of which shall be given
independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the applicable
Filing Date or (B) notwithstanding that the Issuer has consummated or will
consummate the Exchange Offer, the Issuer is required to file a Shelf
Registration and such Shelf Registration is not filed on or prior to the
Filing Date applicable thereto, then commencing on the day after any such
Filing Date, Additional Interest or Additional Dividends, as applicable,
shall accrue on the principal amount of the Notes or accumulate on the
then effective liquidation preference of the Preferred Stock, as
applicable, at a rate of 0.25% per annum for the first 90 days immediately
following each such Filing Date, and the rate of such Additional Interest
or Additional Dividends, as applicable, shall increase by an additional
.25% per annum at the beginning of each subsequent 90-day period; or
(ii) if (A) neither the Exchange Offer Registration Statement nor
the Initial Shelf Registration is declared effective by the SEC on or
prior to the relevant Effectiveness Date or (B) notwithstanding that the
Issuer has consummated or will consummate the Exchange Offer, the Issuer
is required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC on or prior to the Effectiveness Date in
respect of such Shelf Registration, then, commencing on the day after the
applicable Effectiveness Date, Additional Interest or Ad-
17
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ditional Dividends, as applicable, shall accrue on the principal amount of
the Notes or accumulate on the then effective liquidation preference of
the Preferred Stock, as applicable, at a rate of 0.25% per annum for the
first 90 days immediately following the day after such Effectiveness Date,
and the rate of such Additional Interest or Additional Dividends, as
applicable, shall increase by an additional .25% per annum at the
beginning of each subsequent 90-day period; or
(iii) if (A) the Issuer has not exchanged Exchange Securities for
all Securities validly tendered in accordance with the terms of the
Exchange Offer on or prior to the 45th day after the date on which the
Exchange Offer Registration Statement relating thereto was declared
effective or (B) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at any time
during the Effectiveness Period (other than such time as all Securities
have been disposed of thereunder), then Additional Interest or Additional
Dividends, as applicable, shall accrue on the principal amount of the
Notes or accumulate on the then effective liquidation preference of the
Preferred Stock, as applicable, at a rate of 0.25% per annum for the first
90 days commencing on the (x) 46th day after such effective date, in the
case of (A) above, or (y) the day such Shelf Registration ceases to be
effective in the case of (B) above, and the rate of such Additional
Interest or Additional Dividends, as applicable, shall increase by an
additional .25% per annum at the beginning of each such subsequent 90-day
period (it being understood and agreed that, notwithstanding any provision
to the contrary, so long as any Security that is the subject of a Shelf
Notice is then covered by an effective Shelf Registration, no Additional
Interest or Additional Dividends shall accrue or accumulate on such
Securities, as applicable);
provided, however, that the rate of Additional Interest that shall accrue on the
Notes or Additional Dividends that shall accumulate on the then effective
liquidation preference of the Preferred Stock, as applicable, may not exceed in
the aggregate 1.0% per annum; provided, further, however, that (1) upon the
filing of the applicable Exchange Offer Registration Statement or the applicable
Shelf Registration as required hereunder (in the case of clause (i) above of
this Section 4(a)), (2) upon the effectiveness of the applicable Exchange Offer
Registration Statement or the applicable Shelf Registration Statement as
required hereunder (in the case of clause (ii) of this Sec-
18
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tion 4(a)), or (3) upon the exchange of the applicable Exchange Securities for
all Securities tendered (in the case of clause (iii)(A) of this Section 4(a), or
upon the effectiveness of the applicable Shelf Registration Statement which had
ceased to remain effective (in the case of (iii)(B) of this Section 4(a)),
Additional Interest or Additional Dividends, as applicable, on the Securities in
respect of which such events relate as a result of such clause (or the relevant
subclause thereof), as the case may be, shall cease to accrue or accumulate, as
the case may be.
(b) The Issuer shall notify the Trustee (who shall be acting under
and protected by the terms of the Indenture) within three business days after
each and every date on which an event occurs in respect of which Additional
Interest or Additional Dividends, as applicable, are required to be paid (an
"Event Date"). Any amounts of Additional Interest due pursuant to (a)(i),
(a)(ii) or (a)(iii) of this Section 4 shall be payable in cash semiannually on
each March 1 and September 1 (to the holders of record on the February 15 and
August 15 immediately preceding such dates), commencing with the first such date
occurring after any such Additional Interest commences to accrue. Any Additional
Dividends due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 shall be
payable on each dividend payment date specified by the Certificate of
Designation to the record holders entitled to receive the dividend payment to be
made on such date, commencing with the first such date occurring after any such
Additional Dividends commence to accumulate. The amount of Additional Interest
or Additional Dividends, as applicable, will be determined by multiplying the
applicable rate of Additional Interest or Additional Dividends, as applicable,
by the principal amount of the Registrable Notes or liquidation preference of
the Preferred Stock, as applicable, multiplied by a fraction, the numerator of
which is the number of days such rate of Additional Interest or Additional
Dividends was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Issuer shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connec-
19
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tion with any Registration Statement filed by the Issuer hereunder, the Issuer
shall:
(a) Prepare and file with the SEC prior to the applicable Filing
Date, a Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, that, if (1) such filing is pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes or Exchange Preferred Stock, as the case may be, during the Applicable
Period relating thereto, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Issuer shall furnish to and afford
the Holders of the applicable Registrable Securities included in such
Registration Statement or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed (in each case at least five days prior to such filing, or
such later date as is reasonable under the circumstances). The Issuer shall not
file any Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of the
Registrable Notes or aggregate liquidation preference of the Registrable
Preferred Stock, as the case may be, included in such Registration Statement, or
any such Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented by
any prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of the
Securities Act and the Exchange Act applicable to it with respect to the
disposition of all securities covered by such Registration Statement as so
amended or in such Prospectus as so supplemented and with respect to the
subsequent resale of any
20
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securities being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Issuer shall be deemed not to have used its best efforts to keep
a Registration Statement effective during the Effectiveness Period or the
Applicable Period, as the case may be, relating thereto if the Issuer
voluntarily takes any action that would result in selling Holders of the
Registrable Securities covered thereby or Participating Broker-Dealers seeking
to sell Exchange Securities not being able to sell such Registrable Securities
or such Exchange Securities during that period unless such action is required by
applicable law or permitted by this Agreement.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes or Exchange Preferred Stock, as the case may be, during the Applicable
Period relating thereto from whom the Company has received written notice that
it will be a Participating Broker-Dealer in the applicable Exchange Offer,
notify the selling Holders of Registrable Notes or Registrable Preferred Stock,
as the case may be, or each such Participating Broker-Dealer, as the case may
be, their counsel and the managing underwriters, if any, promptly (but in any
event within 2 business days), and confirm such notice in writing, (i) when a
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Issuer, one conformed copy of such
Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus or the initiation
of any proceedings for that purpose, (iii) if at any time when a prospectus is
required by the Securities Act to be delivered in connection with sales of the
Registrable Notes or Registrable Preferred Stock, as the case may be, or resales
of Exchange Notes or Exchange Preferred Stock, as the case may be, by
Participating Broker-Dealers the representations and warranties of the Issuer
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(l) hereof cease to be true and correct in all material respects,
(iv) of the receipt by the Issuer of any notification with respect to
21
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the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Notes or Registrable Preferred
Stock, as the case may be, or the Exchange Notes or Exchange Preferred Stock, as
the case may be, to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or written threat of any proceeding for
such purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in or amendments or supplements to such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Issuer's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes or Exchange Preferred Stock, as the case may be, during the Applicable
Period, use its reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification) of any of the Registrable Notes or Registrable
Preferred Stock, as the case may be, or the Exchange Notes or Exchange Preferred
Stock, as the case may be, to be sold by any Participating Broker-Dealer, for
sale in any jurisdiction, and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order at the
earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
reasonably requested by the managing underwriter or underwriters (if any), the
Holders of a majority in aggregate principal amount of the Registrable Notes
being sold in connection with an underwritten offering or the Holders of a
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majority in aggregate liquidation preference of the Registrable Preferred Stock
being sold in connection with an underwritten offering, as applicable, (i) as
promptly as practicable incorporate in a prospectus supplement or post-effective
amendment such information as the managing underwriter or underwriters (if any),
such Holders, or counsel for any of them determine is reasonably necessary to be
included therein, (ii) make all required filings of such prospectus supplement
or such post-effective amendment as soon as practicable after the Issuer has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make amendments
to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes or Exchange Preferred Stock, as the case may be, during the Applicable
Period, furnish to each selling Holder of Registrable Notes or Registrable
Preferred Stock, as the case may be, and to each such Participating
Broker-Dealer who so requests and to their respective counsel and each managing
underwriter, if any, at the sole expense of the Issuer, one conformed copy of
the applicable Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes or Exchange Preferred Stock, as the case may be, during the Applicable
Period, deliver to each selling Holder of Registrable Notes or Registrable
Preferred Stock, as the case may be, or each such Participating Broker-Dealer,
as the case may be, their respective counsel, and the underwriters, if any, at
the sole expense of the Issuer, as many copies of the Prospectus or Prospectuses
(including each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section 5, the
Issuer hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling
23
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Holders of Registrable Notes or Registrable Preferred Stock, as the case may be,
or each such Participating Broker-Dealer, as the case may be, and the
underwriters or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Notes or Registrable Preferred Stock, as
the case may be, covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes or Exchange Preferred Stock, as the case may be, pursuant to,
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or Registrable
Preferred Stock, as the case may be, or any delivery of a Prospectus contained
in the applicable Exchange Offer Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange Notes or Exchange Preferred Stock, as
the case may be, during the Applicable Period, use its reasonable best efforts
to register or qualify, and to cooperate with the selling Holders of Registrable
Notes or Registrable Preferred Stock, as the case may be, or each such
Participating Broker-Dealer, as the case may be, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Notes or Registrable Preferred Stock, as the
case may be, for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably request in
writing; provided, however, that where Exchange Notes or Exchange Preferred
Stock, as the case may be, held by Participating Broker-Dealers or Registrable
Notes or Registrable Preferred Stock, as the case may be, are offered other than
through an underwritten offering, the Issuer agrees to cause their counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 5(h), keep each such registration
or qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of the Exchange Notes or Exchange Preferred Stock, as the
case may be, held by Participating Broker-Dealers or the Registrable Notes or
Registrable Preferred Stock, as the case may be, covered by the applicable
Registration Statement; provided, however, that the Issuer shall not be required
to (A) qualify generally to do business in any jurisdiction where it is not then
so qualified, (B) take any action that would subject it to general service of
process in any such jurisdiction where it is not then so subject or (C) subject
it-
24
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self to taxation in excess of a nominal dollar amount in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Notes or Registrable Preferred
Stock, as the case may be, and the managing underwriter or underwriters, if any,
to facilitate the timely preparation and delivery of certificates representing
Registrable Notes or Registrable Preferred Stock, as the case may be, to be
sold, which certificates shall not bear any restrictive legends and shall be in
a form eligible for deposit with The Depository Trust Company; and enable such
Registrable Notes or Registrable Preferred Stock, as the case may be, to be in
such denominations and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes or Exchange Preferred Stock, as the case may be, during the Applicable
Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi) hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the sole expense of the Issuer, a supplement or
post-effective amendment to the applicable Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Notes or
Registrable Preferred Stock, as the case may be, being sold thereunder or to the
purchasers of the Exchange Notes or Exchange Preferred Stock, as the case may
be, to whom such Prospectus will be delivered by a Participating Broker-Dealer,
any such Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, the Issuer shall not be
required to amend or supplement a Registration Statement, any related Prospectus
or any document incorporated therein by reference, in the event that, and for a
period not to exceed an aggregate of 60 days in any calendar year if, (i) an
event occurs and is continuing as a result of which a Shelf Registration would,
in the Company's good faith judgment, contain an untrue statement of a material
fact or omit to state a material fact necessary
25
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in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and (ii) (a) the Company determines in its
good faith judgment that the disclosure of such event at such time would have a
material adverse effect on the business, operations or prospects of the Company
or (b) the disclosure otherwise relates to a pending material business
transaction that has not yet been publicly disclosed.
(k) Prior to the effective date of the first Registration Statement
relating to each of the Registrable Securities, (A) with respect to the
Registrable Notes (i) provide the Trustee with certificates for the Registrable
Notes in a form eligible for deposit with The Depository Trust Company and (ii)
provide a CUSIP number for the Registrable Notes, (B) with respect to the
Registrable Preferred Stock (i) provide the Transfer Agent with printed
certificates for the Registrable Preferred Stock in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Preferred Stock and (C) prior to the issuance of the Exchange
Debentures, provide a CUSIP number therefor.
(l) In connection with any underwritten offering of Registrable
Notes or Registrable Preferred Stock, as the case may be, pursuant to a Shelf
Registration, enter into an underwriting agreement as is customary in
underwritten offerings of securities similar to the Notes or Preferred Stock, as
the case may be, in form and substance reasonably satisfactory to the Company
and take all such other actions as are reasonably requested by the managing
underwriter or underwriters in order to expedite or facilitate the registration
or the disposition of such Registrable Notes or Registrable Preferred Stock, as
the case may be, and, in such connection, (i) make such representations and
warranties to, and covenants with, the underwriters with respect to the business
of the Company and the subsidiaries of the Company (including any acquired
business, properties or entity, if applicable) and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by issuers to
underwriters in underwritten offerings of securities similar to each of the
Securities, and confirm the same in writing if and when requested in form and
substance reasonably satisfactory to the Company; (ii) obtain the written
opinions of counsel to the Company and written updates thereof in form, scope
and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions reasonably requested in underwritten offerings and such
other
26
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matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) use its reasonable best efforts to obtain "cold comfort"
letters and updates thereof in form, scope and substance reasonably satisfactory
to the managing underwriter or underwriters from the independent public
accountants of the Company (and, if necessary, any other independent public
accountants of the Company, 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 or incorporated by reference in a Registration
Statement), addressed to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of debt securities
similar to the Notes and equity securities similar to the Preferred Stock and
such other matters as reasonably requested by the managing underwriter or
underwriters as permitted by the Statement on Auditing Standards No. 72; and
(iv) if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the sellers and
underwriters, if any, than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount or liquidation preference, as applicable, of each of the
Registrable Notes and Registrable Preferred Stock, as applicable, covered by
such Registration Statement and the managing underwriter or underwriters or
agents, if any). The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(m) If (1) a Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered under
the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes or Exchange Preferred Stock, as the case may be, during the Applicable
Period, make available for inspection by any selling Holder of such Registrable
Notes or Registrable Preferred Stock, as the case may be, being sold, or each
such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes or Registrable
Preferred Stock, as the case may be, 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
instruments of the Company and subsidiaries of the Company
27
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(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 any of its subsidiaries to supply all
information reasonably requested by any such Inspector in connection with such
Registration Statement and Prospectus. Each Inspector shall agree in writing
that it will keep the Records confidential and that it will not disclose any of
the Records that the Company determines, in good faith, to be confidential and
notifies the Inspectors in writing are confidential unless (i) the disclosure of
such Records is necessary to avoid or correct a material misstatement or
material omission in such Registration Statement or Prospectus, (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; provided, however, that prior notice shall be
provided as soon as practicable to the Company of the potential disclosure of
any information by such Inspector pursuant to clauses (i) or (ii) of this
sentence to permit the Company to obtain a protective order (or waive the
provisions of this paragraph (m)) and that such Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such action is otherwise not
inconsistent with, an impairment of or in derogation of the rights and interests
of the Holder or any Inspector.
(n) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under any such indenture and the Holders
of the Registrable Notes, to effect such changes to such indenture as may be
required for such indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable best efforts to cause such trustee
to execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the SEC to enable such
indenture to be so qualified in a timely manner.
(o) Provide an indenture trustee for the Debentures and cause the
Exchange Indenture to be qualified under the TIA not later than the earlier of
(i) the effective date of the first Registration Statement relating to the
Registrable Preferred Stock and (ii) the effective date of the first
Registra-
28
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tion Statement relating to the Debentures; and in connection therewith,
cooperate with the trustee under any such indenture and the holders of the
Preferred Stock and/or the Exchange Preferred Stock and Private Exchange
Preferred Stock, to effect such changes to the Exchange Indenture, if any, as
may be required for the Exchange Indenture to be so qualified in accordance with
the terms of the TIA; and execute, and use its reasonable efforts to cause such
trustee to execute, all customary 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 Exchange Indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders with regard to any applicable
Registration Statement, a consolidated earnings statement 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 twelve-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 any 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.
(q) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes, and addressed to the Transfer Agent for the
benefit of each Holder of Registrable Preferred Stock, participating in the
Exchange Offer or the Private Exchange, as the case may be, that the Exchange
Notes or Exchange Preferred Stock, as the case may be, or Private Exchange Notes
or Private Exchange Preferred Stock, as the case may be, and the related
indenture, for purposes of the Registrable Notes, constitute legal, valid and
binding obligations of the Issuer, enforceable against the Issuer in accordance
with their respective terms subject to customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes or Registrable Preferred
Stock, as the case may be, by Holders to the Company (or to such other Person as
directed by the Issuer)
29
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in exchange for the Exchange Notes or Exchange Preferred Stock, as the case may
be, or the Private Exchange Notes or Private Exchange Preferred Stock, as the
case may be, the Company shall mark, or cause to be marked, on such Registrable
Notes or Registrable Preferred Stock, as the case may be, that such Registrable
Notes or Registrable Preferred Stock, as the case may be, are being canceled in
exchange for the Exchange Notes or Exchange Preferred Stock, as the case may be,
or the Private Exchange Notes or Private Exchange Preferred Stock, as the case
may be; provided that in no event shall such Registrable Notes or Registrable
Preferred Stock, as the case may be, be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes or Registrable
Preferred Stock, as the case may be, covered by any Registration Statement and
each underwriter, if any, participating in the disposition of such Registrable
Notes or Registrable Preferred Stock, as the case may be, and their respective
counsel in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use its best efforts to take all other steps reasonably
necessary to effect the registration of the applicable Registrable Securities
covered by a Registration Statement contemplated hereby.
The Company may require each seller of any Registrable Securities as
to which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
or Registrable Preferred Stock, as the case may be, as the Company may, from
time to time, reasonably request. The Company may exclude from such registration
the Registrable Notes or Registrable Preferred Stock, as the case may be, of any
seller for so long as such seller fails to furnish such information within a
reasonable time after receiving such request and in such event shall have no
further obligation under this Agreement (including without limitation the
obligation under Section 4) with respect to such seller or any subsequent holder
of such Registrable Securities. Each seller as to which any Shelf Registration
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such seller not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of
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the Company, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such
Holder, to the effect that the holding by such Holder of such securities is not
to be construed as a recommendation by such Holder of the investment quality of
the securities covered thereby and that such holding does not imply that such
Holder will assist in meeting any future financial requirements of the Company,
or (ii) in the event that such reference to such Holder by name or otherwise is
not required by the Securities Act or any similar federal statute then in force,
the deletion of the reference to such Holder in any amendment or supplement to
the applicable Registration Statement filed or prepared subsequent to the time
that such reference ceases to be required.
Each Holder of Registrable Notes or Registrable Preferred Stock, as
the case may be, and each Participating Broker-Dealer agrees by its acquisition
of such Registrable Notes or Registrable Preferred Stock, as the case may be, or
Exchange Notes or Exchange Preferred Stock, as the case may be, to be sold by
such Participating Broker-Dealer, as the case may be, that, upon actual receipt
of any notice from the Company of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder or Participating Broker-Dealer, as the case may be, will forthwith
discontinue disposition of such Registrable Notes, Registrable Preferred Stock,
Exchange Notes or Exchange Preferred Stock, as the case may be, covered by such
Registration Statement or Prospectus until such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof, or until it is advised in writing (the
"Advice") by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event that the Company shall give any such notice, the Applicable Period
shall be extended by the number of days during such periods from and including
the date of the giving of such notice to and including the date when each seller
of Registrable Notes or Registrable Preferred Stock, as the case may be, covered
by such Registration Statement or Exchange Notes or Exchange Preferred Stock, as
the case may be, to be sold by such Participating Broker-Dealer, as the case may
be, shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(j) hereof or (y) the Advice.
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6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuer (other than any underwriting discounts or
commissions) shall be borne by the Company whether or not the Exchange Offer
Registration Statements or any Shelf Registration is filed or becomes effective
or the Exchange Offer is consummated, including, without limitation, (i) all
registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) reasonable fees and expenses of compliance with
state securities or Blue Sky laws (including, without limitation, reasonable
fees and disbursements of counsel in connection with Blue Sky qualifications of
the Registrable Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for investment
under the laws of such jurisdictions (x) where the holders of Registrable Notes,
Registrable Preferred Stock, Exchange Notes or Exchange Preferred Stock, as the
case may be, are located, or (y) as provided in Section 5(h) hereof, in the case
of Registrable Notes or Registrable Preferred Stock, as the case may be, or
Exchange Notes or Exchange Preferred Stock, as the case may be, to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses, including, without limitation, expenses of printing certificates for
Registrable Securities or Exchange Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the managing underwriter or underwriters, if
any, by the Holders of a majority in aggregate principal amount of the
Registrable Notes, or liquidation preference of the Registrable Preferred Stock,
as the case may be, included in any Registration Statement or to be sold by any
Participating Broker-Dealer, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Company and
reasonable fees and disbursements of one special counsel for all of the sellers
of each of the Registrable Notes or Registrable Preferred Stock, as the case may
be, (exclusive of any counsel retained pursuant to Section 7 hereof), (v)
reasonable fees and disbursements of all independent certified public
accountants referred to in Section 5(l)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Company desires such insurance, (vii) fees and expenses of all
other Persons retained by the Issuer, (viii) internal expenses of the Company
(including, without limitation, all salaries and expenses of
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officers and employees of the Company performing legal or accounting duties),
(ix) the expense of any annual audit, (x) any fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, and the obtaining of a rating of the securities, in each case, if
applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
7. Indemnification and Contribution
(a) The Issuer agrees to indemnify and hold harmless each Holder of
the Registrable Notes and Registrable Preferred Stock, as the case may be, and
each Participating Broker-Dealer selling the Exchange Notes and Exchange
Preferred Stock, as the case may be, during the Applicable Period, the
affiliates, officers and directors of each such Person, and each Person, if any,
who controls any such Person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages, judgments, liabilities and
expenses (including, without limitation, the reasonable legal fees and other
expenses actually incurred in connection with any suit, action or proceeding or
any claim asserted) caused by, arising out of or based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the case of the
Prospectus in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant furnished to the Company in writing by such Participant
expressly for use therein and with respect to any preliminary Prospectus, to the
extent that any such loss, claim, damage or liability arises solely from the
fact that any Participant sold Registrable Notes, Registrable Preferred Stock,
Exchange Notes or Exchange Preferred Stock to a person to whom there was not
sent or given a copy of the Prospectus (as amended or supplemented) at or prior
to the written confirmation of such sale if the Company shall have previously
furnished copies thereof to the Participant in accordance herewith
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and the Prospectus (as amended or supplemented) would have corrected any such
untrue statement or omission.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuer, the affiliates, officers and directors of the
Issuer and each Person who controls the Issuer within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent (but
on a several, and not joint, basis) as the foregoing indemnity from the Issuer
to each Participant, but only with reference to information relating to such
Participant furnished to the Company in writing by or on behalf of such
Participant expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary prospectus. The liability of
any Participant under this paragraph shall in no event exceed the proceeds
received by such Participant from sales of Registrable Securities or Exchange
Securities giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Persons against whom such indemnity may be sought (the "Indemnifying
Persons") in writing, and the Indemnifying Persons, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may reasonably designate in such proceeding and shall pay
the fees and expenses actually incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the Indemnifying
Persons will not relieve it from any liability under paragraph (a) or (b) above
unless and to the extent such failure results in the forfeiture by the
Indemnifying Person of substantial rights and defenses and the Indemnifying
Person was not otherwise aware of such action or claim. In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Persons and the Indemnified Person shall have
mutually agreed to the contrary, (ii) the Indemnifying Persons shall have failed
within a reasonable period of time to retain counsel reasonably satisfactory to
the Indemnified Person or (iii) the named parties in any such proceeding
(including any impleaded parties) include both any Indemnifying Person and the
Indemnified Person or any affiliate thereof and representation of both parties
by the
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same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Persons shall
not, in connection with such proceeding or separate but substantially similar
related proceedings in the same jurisdiction arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed promptly as they are incurred. Any
such separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Notes or Registrable Preferred Stock, as the case may be, and
Exchange Notes or Exchange Preferred Stock, as the case may be, sold by all such
Participants and shall be reasonably acceptable to the Company, and any such
separate firm for the Issuer, their affiliates, officers, directors,
representatives, employees and agents and such control Persons of such Issuer
shall be designated in writing by such Issuer and shall be reasonably acceptable
to the Holders.
The Indemnifying Persons shall not be liable for any settlement of
any proceeding effected without its prior written consent (which consent shall
not be unreasonably withheld or delayed), but if settled with such consent or if
there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
each of the Indemnifying Persons agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Persons (which consent shall not be unreasonably
withheld or delayed), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of such
Indemnified Person.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities
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referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the applicable
Securities or (ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuer on the one hand or
such Participant or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages, judgments, liabilities and expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Securities
or Exchange Securities, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay or has paid by reason
of such untrue or alleged untrue statement or omission or alleged omis-
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sion. No Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the Indemnifying Persons
may otherwise have to the Indemnified Persons referred to above.
8. Rules 144 and 144A
The Issuer covenants and agrees that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange Act and,
if at any time such Issuer is not required to file such reports, such Issuer
will, upon the request of any Holder or beneficial owner of Registrable Notes or
Registrable Preferred Stock, as the case may be, make available such information
necessary to permit sales pursuant to Rule 144A under the Securities Act. The
Issuer further covenants and agrees, for so long as any Registrable Securities
remain outstanding that it will take such further action as any Holder of
Registrable Notes or Registrable Preferred Stock, as the case may be, may
reasonably request, all to the extent required from time to time to enable such
holder to sell Registrable Notes or Registrable Preferred Stock, as the case may
be, without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes or Registrable Preferred Stock, as
the case may be, covered by any Shelf Registration are to be sold in an
underwritten offering, the investment banker or investment bankers and manager
or managers that will manage the offering will be selected by the Holders of a
majority in aggregate principal amount of such Registrable Notes, or liquidation
preference of such Registrable Preferred Stock, as the case may be, included in
such offering and shall be reasonably acceptable to the Issuer.
No Holder of Registrable Notes or Registrable Preferred Stock, as
the case may be, may participate in any under-
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written registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes or Registrable Preferred Stock, as the case may be,
on the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuer has not, as of the date
hereof, and the Issuer shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Notes, Registrable Preferred
Stock or the Debentures 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 Issuer's other issued and outstanding securities under any such agreements.
The Issuer will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Securities. The Issuer shall
not, directly or indirectly, take any action with respect to the Registrable
Notes or Registrable Preferred Stock, as the case may be, that would adversely
affect the ability of the Holders of Registrable Notes or Registrable Preferred
Stock, as the case may be, to include such Registrable Notes or Registrable
Preferred Stock, as the case may be, in a registration undertaken pursuant to
this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (I) the Company and (II)(A) the Holders of not less than a majority
in aggregate principal amount or liquidation preference, as the case may be, of
the then outstanding Registrable Notes or Registrable Preferred Stock, as the
case may be, and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount or liquidation preference, as the
case may be, of the Exchange Notes or Exchange Preferred Stock, as the case may
be, held by all
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Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented without the prior written
consent of each Holder and each Participating Broker-Dealer (including any
person who was a Holder or Participating Broker-Dealer of Registrable Securities
or Exchange Securities, as the case may be, disposed of pursuant to any
Registration Statement) affected by any such amendment, modification or
supplement. Notwithstanding the foregoing, a waiver or consent to depart from
the provisions hereof with respect to a matter that relates exclusively to the
rights of Holders of Registrable Notes or Registrable Preferred Stock, as the
case may be, whose securities are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders of Registrable Notes or Registrable
Preferred Stock, as the case may be, may be given by Holders of at least a
majority in aggregate principal amount or liquidation preference, as the case
may be, of the Registrable Notes or Registrable Preferred Stock, as the case may
be, being sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee,
Debenture Trustee or Transfer Agent) provided for or permitted hereunder shall
be made in writing by hand-delivery, registered first-class mail, next-day air
courier or facsimile:
(i) if to a Holder of Registrable Notes, Registrable Preferred Stock
or Debentures or any Participating Broker-Dealer, at the most current
address of such Holder or Participating Broker-Dealer, as the case may be,
set forth on the records of the registrar under the Indenture, the
Exchange Indenture or of the Company, as appropriate.
(ii) if to the Issuer, at the address as follows:
MCMS, Inc.
16399 Franklin Road
Nampa, ID 83687
Facsimile No.: (208) 898-2796
Attention: Corporate Counsel
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being
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timely delivered to a next-day air courier; and when receipt is acknowledged by
the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same (i) to the Trustee at the
address and in the manner specified in the Indenture if such communication
relates to the Notes, Exchange Notes or Private Exchange Notes, (ii) to the
Transfer Agent at the address and in the manner specified in the Certificate of
Designation if such communication relates to the Preferred Stock, Exchange
Preferred Stock or Private Exchange Preferred Stock or (iii) to the Debenture
Trustee at the address and in the manner specified in the Exchange Indenture if
such communication relates to the Debentures.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; provided, however,
that this Agreement shall not inure to the benefit of or be binding upon a
successor of assign of a Holder or a Participating Broker-Dealer unless and to
the extent such successor or assign holds Registable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
ef-
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fect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes or
Registrable Preferred Stock, as the case may be, is required hereunder,
Registrable Notes or Registrable Preferred Stock, as the case may be, held by
the Company or its affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Notes, Holders
of the Registrable Preferred Stock, Holders of the Debentures (to the extent
Preferred Stock has been exchanged for Debentures prior to the filing of a
Registration Statement) and Participating Broker-Dealers are intended
third-party beneficiaries of this Agreement, and this Agreement may be enforced
by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Certificate of Designation, the Indenture and the Exchange
Indenture are intended by the parties as a final and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein and any and all prior oral or written
agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuer on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
MCMS, INC.
By: /s/ Chris J. Anton
------------------------------------
Name: Chris J. Anton
Title: Vice President, Finance & CEO
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
BT ALEX. BROWN INCORPORATED
as Initial Purchaser
By: /s/ MK Lynch
----------------------
Name: MK Lynch
Title: VP