EXHIBIT 4.8
EXECUTION COPY
$75,500,000 PRINCIPAL AMOUNT AT MATURITY
MSX INTERNATIONAL, INC.
AND
MSX INTERNATIONAL LIMITED
11% OF SENIOR SECURED NOTE UNITS DUE 2007
REGISTRATION RIGHTS AGREEMENT
August 1, 2003
JEFFERIES & COMPANY, INC.
520 Madison Avenue
12th Floor
New York, NY 10022
Ladies and Gentlemen:
MSX INTERNATIONAL, INC., a Delaware corporation (the "Company"), and
its wholly-owned subsidiary MSX INTERNATIONAL LIMITED, ("MSXI Limited" and
together with the Company, the "Issuers") are issuing and selling to Jefferies &
Company, Inc. (the "Initial Purchaser"), upon the terms set forth in the
Purchase Agreement dated July 25, 2003, by and between the Issuers and the
Initial Purchaser (the "Purchase Agreement"), 75,500 Units (each, a "Unit" and
collectively, the "Units"), each Unit consisting of $860 principal amount of 11%
Senior Secured Notes due 2007 issued by MSX International Inc. (the "U.S.
Notes") and $140 principal amount of 11% Senior Secured Notes due 2007 issued by
MSX International Limited (the "U.K. Notes" and, together with U.S. Notes, the
"Notes"). As an inducement to the Initial Purchaser to enter into the Purchase
Agreement, the Issuers and the Guarantors (as defined below) agree with the
Initial Purchaser, for the benefit of the Holders (as defined below) of the
Units (including, without limitation, the Initial Purchaser), as follows:
1. DEFINITIONS
Capitalized terms that are used herein without definition and are
defined in the Purchase Agreement shall have the respective meanings ascribed to
them in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 5(v).
AGREEMENT: This Registration Rights Agreement, dated as of the Closing
Date, among the Issuers and the Initial Purchaser.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
CLOSING DATE: August 1, 2003.
COLLATERAL AGREEMENTS: Shall have the meaning set forth in the
Indenture.
COMPANY: See the introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 180th day after the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT DATE: See Section 4(b).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE NOTES: The Exchange U.S. Notes and the Exchange U.K. Notes.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
EXCHANGE U.K. NOTES: The Senior Secured Notes due 2007 of MSXI Limited
identical in all material respects to the U.K. Notes, including the guarantees
endorsed thereon, except for restrictive legends and additional interest
provisions.
EXCHANGE UNITS: The Senior Secured Note Units, each consisting of the
$860 principal amount of Exchange U.S. Notes and $140 principal amount of
Exchange U.K. Notes, identical to the Units, except for references to series and
restrictive legends.
EXCHANGE U.S. NOTES: The Senior Secured Notes due 2007 of the Company,
identical in all material respects to the U.S. Notes, including the guarantees
endorsed thereon, except for restrictive legends and additional interest
provisions.
FILING DATE: The 90th day after the Issue Date.
GUARANTORS: Shall mean the Company and the Subsidiary Guarantors with
respect to the U.S. Notes and the Subsidiary Guarantors with respect to the U.K.
Notes.
HOLDER: Any registered holder of Registrable Units.
INDEMNIFIED PARTY: See Section 7(c).
INDEMNIFYING PARTY: See Section 7(c).
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INDENTURE: The Indenture, dated as of the Closing Date, among the
Issuers, the Subsidiary Guarantors and BNY Midwest Trust Company, as trustee,
pursuant to which the Units are being issued, as amended or supplemented from
time to time in accordance with the terms hereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 5(o).
ISSUE DATE: August 1, 2003.
ISSUERS: See the introductory paragraph to this Agreement.
LOSSES: See Section 7(a).
MSXI LIMITED: See the introductory paragraph to this Agreement
NASD: National Association of Securities Dealers, Inc.
NOTES: Shall mean the U.S. Notes and the U.K. Notes.
PARTICIPATING BROKER-DEALER: See Section 2(e).
PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Units covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 5(o).
REGISTRABLE NOTES: Notes.
REGISTRABLE UNITS: Units (including the underlying Registrable Notes).
REGISTRATION STATEMENT: Any registration statement of the Issuers and
the Guarantors filed with the SEC under the Securities Act (including, but not
limited to, the Exchange Registration Statement, the Shelf Registration and any
subsequent Shelf Registration) that covers
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any of the Registrable Units or Registrable Notes pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
RULE 144: Rule 144 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 an issuer or 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.
RULE 430A: Rule 430A 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: The Units, the Exchange Units, the Notes and the Exchange
Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
SEPARATION EVENT: Shall have the meaning set forth in the Indenture.
SHELF NOTICE: See Section 2(i).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
SUBSIDIARY GUARANTOR: Each subsidiary of the Company that guarantees
the obligations of the Issuers under the Notes and the Indenture.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Units and the Notes.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Issuers are sold to an underwriter for reoffering to the
public.
UNITS: See the introductory paragraph to this Agreement.
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U.S. NOTES: See the introductory paragraph to this Agreement.
U.K. NOTES: See the introductory paragraph to this Agreement.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would not be permitted by applicable
federal law or a policy of the SEC, the Issuers shall (and
shall cause each Guarantor with respect to its guarantee to)
(i) prepare and file with the SEC promptly after the date
hereof, but in no event later than the Filing Date, a
registration statement (the "Exchange Registration Statement")
on an appropriate form under the Securities Act with respect
to an offer (the "Exchange Offer") to the Holders of
Registrable Units to issue and deliver to such Holders, in
exchange for the Units, a like principal amount of Exchange
Units, (ii) use commercially reasonable efforts to cause the
Exchange Registration Statement to become effective as
promptly as practicable after the filing thereof, but in no
event later than the Effectiveness Date, (iii) use
commercially reasonable efforts to keep the Exchange
Registration Statement effective until the consummation of the
Exchange Offer in accordance with its terms, and (iv) commence
the Exchange Offer and use commercially reasonable efforts to
issue on or prior to 30 days after the date on which the
Exchange Registration Statement is declared effective,
Exchange Units in exchange for all Units tendered prior
thereto in the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer
does not violate applicable law or any applicable
interpretation of the staff of the SEC.
(b) The Exchange Units shall be issued under, and entitled to the
benefits of, (i) the Indenture or a trust indenture that is
identical to the Indenture (other than such changes as are
necessary to comply with any requirements of the SEC to effect
or maintain the qualifications thereof under the TIA) and (ii)
the Collateral Agreements.
(c) Interest on the Exchange Notes will accrue from the last
interest payment date on which interest was paid on the Notes
surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the date of original issue of the
Notes. Each Exchange Note shall bear interest at the rate set
forth thereon; provided, that interest with respect to the
period prior to the issuance thereof shall accrue at the rate
or rates borne by the Notes from time to time during such
period.
(d) The Issuers may require each Holder as a condition to
participation in the Exchange Offer to represent in writing,
that at the time of consummation of the Exchange Offer (i) any
Exchange Units received by it will be acquired in the ordinary
course of its business, (ii) at the time of the commencement
and consummation of the Exchange Offer such Holder has not
entered into any arrangement or understanding with any Person
to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Units in violation of the
provisions of the Securities Act, (iii) such Holder is not an
"affiliate," as
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defined in Rule 405 of the Securities Act, of the Issuers, or
if such Holder is an affiliate of the Issuers it will comply
with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable to it, (iv) if
such Holder is not a broker-dealer, it is not engaged in, and
does not intend to engage in, the distribution of the Units
and (v) if such Holder is a Participating Broker-Dealer, it
will deliver a Prospectus in connection with any resale of the
Exchange Units.
(e) The Issuers shall include within the Prospectus contained in
the Exchange Registration Statement a section entitled "Plan
of Distribution" which shall contain all information that the
SEC may require with respect to the potential "underwriter"
status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange
Units received by such broker-dealer in the Exchange Offer for
its own account in exchange for Units that were acquired by it
as a result of market-making or other trading activity (a
"Participating Broker-Dealer"). Such "Plan of Distribution"
section shall also allow, to the extent permitted by
applicable policies and regulations of the SEC, the use of the
Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including, to the extent
so permitted, all Participating Broker-Dealers, and include a
statement describing the manner in which Participating
Broker-Dealers may resell the Exchange Units. The Issuers
shall use reasonable best efforts to keep the Exchange
Registration Statement effective and to amend and supplement
the Prospectus contained therein, in order to permit such
Prospectus to be lawfully delivered by all Persons subject to
the prospectus delivery requirements of the Securities Act for
180 days after consummation of the Exchange Offer; provided,
however, that (i) in the case where such Prospectus and any
amendment or supplement thereto must be delivered by a
Participating Broker-Dealer or the Initial Purchaser, such
period shall be the lesser of 180 days and the date on which
all Participating Broker-Dealers and the Initial Purchaser
have sold all Exchange Units held by them (unless such period
is extended pursuant to Section 5(k) below) and (ii) the
Issuers shall make such Prospectus and any amendment or
supplement thereto available to any Participating
Broker-Dealer for use in connection with any resale of any
Exchange Units for a period not less than 90 days after the
consummation of the Exchange Offer (the "Applicable Period").
(f) In connection with the Exchange Offer, the Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together
with an appropriate letter of transmittal and related
documents;
(ii) utilize the services of a depository for the Exchange
Offer with an address in the Borough of Manhattan,
the City of New York, which may be the Trustee or an
affiliate thereof;
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(iii) permit Holders to withdraw tendered Registrable Units
at any time prior to the close of business, New York
time, on the last Business Day on which the Exchange
Offer shall remain open; and
(iv) otherwise comply in all material respects with all
applicable laws.
(g) As soon as practicable after the close of the Exchange Offer
the Issuers shall:
(i) accept for exchange all Registrable Units validly
tendered pursuant to the Exchange Offer and not
validly withdrawn;
(ii) deliver to the Trustee for cancellation all
Registrable Units so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver
promptly to each Holder tendering such Registrable
Units and underlying Registrable Notes or Exchange
Units and underlying Exchange Notes, equal in
principal amount at maturity to the Notes of such
Holder so accepted for exchange.
(h) The Exchange Units may be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the
Indenture, which in either event will provide that the
Exchange Units will not be subject to the transfer
restrictions or additional interest provisions set forth in
the Indenture and that the Exchange Units and Exchange Notes,
if any, will be deemed one class of security (subject to the
provisions of the Indenture) and entitled to participate in
all the security granted by the Issuers pursuant to the
Collateral Agreements and in any Guarantee (as such terms are
defined in the Indenture) on an equal and ratable basis.
(i) If, (i) any change in law or applicable interpretations of the
staff of the SEC would not permit the consummation of the
Exchange Offer as contemplated by this Section 2, (ii) the
Exchange Offer is not consummated within 30 Business Days
after the Effectiveness Date for any reason, (iii) in the case
of any Holder not permitted by applicable law or SEC policy to
participate in the Exchange Offer or any Holder that
participates in the Exchange Offer but does not receive
Exchange Units 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 Issuers within the meaning of the Securities
Act) and so notifies the Issuers within 45 days of
consummation of the Exchange Offer, or (iv) the Issuers so
elect, then the Issuers (and any then existing Guarantor)
shall promptly deliver to the Holders and the Trustee written
notice thereof (the "Shelf Notice") and shall file an Initial
Shelf Registration pursuant to Section 3.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(i), then this
Section 3 shall apply to all Registrable Units. Otherwise, upon consummation of
the Exchange Offer in accordance with Section 2, the provisions of this Section
3 shall apply solely with respect to (i) Units held by any Holder thereof not
permitted by applicable law or SEC policy to participate in the Exchange
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Offer and (ii) Exchange Units that are not freely tradeable as contemplated by
Section 2(i)(iii) hereof, provided in each case that the relevant Holder has
duly notified the Issuers within 45 days of the Exchange Offer as required by
Section 2(i)(iii).
(a) Initial Shelf Registration. The Issuers shall as promptly as
practicable after the date of the Shelf Notice file (and shall
cause any then existing Guarantor to 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 Units (the "Initial Shelf Registration"). If the
Issuers (and any then existing Guarantor) have not yet filed
an Exchange Registration Statement prior to receiving the
Shelf Notice, the Issuers shall file (and shall cause any then
existing Guarantor to file) with the SEC the Initial Shelf
Registration on or prior to the Filing Date and shall use
commercially reasonable efforts to cause such Initial Shelf
Registration to be declared effective under the Securities Act
on or prior to the Effectiveness Date. Otherwise, the Issuers
shall use commercially reasonable efforts to file (and shall
cause any then existing Guarantor to file) with the SEC the
Initial Shelf Registration within 30 days of the delivery of
the Shelf Notice and shall use commercially reasonable efforts
to cause such Shelf Registration to be declared effective
under the Securities Act as promptly as practicable thereafter
(but in no event more than 90 days after delivery of the Shelf
Notice). The Initial Shelf Registration shall be on Form S-1
or another appropriate form permitting registration of such
Registrable Units for resale by Holders in the manner or
manners reasonably designated by them (including, without
limitation, one or more underwritten offerings). The Issuers
and Guarantors shall not permit any securities other than the
Registrable Units to be included in any Shelf Registration. No
Holder of Registrable Units shall be entitled to include any
of its Registrable Units in any Shelf Registration pursuant to
this Agreement unless such Holder furnishes to the Issuers and
the Trustee in writing, within 20 days after receipt of a
written request therefor, such information as the Issuers and
the Trustee after conferring with counsel with regard to
information relating to Holders that would be required by the
SEC to be included in such Shelf Registration or Prospectus
included therein, may reasonably request for inclusion in any
Shelf Registration or Prospectus included therein. The Issuers
shall use their reasonable best efforts to keep the Initial
Shelf Registration continuously effective under the Securities
Act until the date which is two years from the Closing Date
(the "Effectiveness Period"), or such shorter period ending
when (i) all Registrable Units covered by the Initial Shelf
Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration, (ii) a
Subsequent Shelf Registration covering all of the Registrable
Units covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration has
been declared effective under the Securities Act or (iii) the
date on which the Units become eligible for resale without
volume restrictions pursuant to Rule 144 under the Securities
Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined
below) ceases to be effective for any reason at any time
during the Effectiveness Period (other than because of the
sale
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of all of the securities registered thereunder), the Issuers
shall use their reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of
effectiveness amend such Shelf Registration in a manner
designed to obtain the withdrawal of the order suspending the
effectiveness thereof, or file (and cause any then existing
Guarantor to file) an additional "shelf" Registration
Statement pursuant to Rule 415 covering all of the Registrable
Units (a "Subsequent Shelf Registration"). If a Subsequent
Shelf Registration is filed, the Issuers shall use their
reasonable best efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable
after such filing and to keep such Subsequent Shelf
Registration continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate
number of days during which the Initial Shelf Registration or
any Subsequent Shelf Registration was previously continuously
effective. As used herein the term "Shelf Registration" means
the Initial Shelf Registration and any Subsequent Shelf
Registrations.
(c) Supplements and Amendments. The Issuers 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.
4. ADDITIONAL INTEREST
(a) The Issuers acknowledge and agree that the Holders of
Registrable Units will suffer damages if the Issuers fail to
fulfill their material 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
Issuers agree to pay additional cash interest on the Notes
("Additional Interest") under the circumstances and to the
extent set forth below (each of which shall be given
independent effect):
(i) if neither the Exchange Registration Statement nor
the Initial Shelf Registration has been filed on or
prior to the Filing Date, Additional Interest shall
accrue on the Notes over and above any stated
interest at a rate of 0.25% per annum of the
principal amount of such Notes for the first 90 days
immediately following the Filing Date, such
Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent
90-day period, subject to the proviso in the last
sentence of this paragraph;
(ii) if neither the Exchange Registration Statement nor
the Initial Shelf Registration is declared effective
on or prior to the Effectiveness Date, Additional
Interest shall accrue on the Notes over and above any
stated interest at a rate of 0.25% per annum of the
principal amount of such Notes for the first 90 days
immediately following the Effectiveness Date, such
Additional Interest rate increasing by an additional
0.25% per annum
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at the beginning of each subsequent 90-day period,
subject to the proviso in the last sentence of this
paragraph;
(iii) if (A) the Issuers (and any then existing Guarantor)
have not exchanged Exchange Units for all Units
validly tendered in accordance with the terms of the
Exchange Offer on or prior to 30 Business Days after
the Effectiveness Date, (B) the Exchange Registration
Statement ceases to be effective at any time prior to
the time that the Exchange Offer is consummated, (C)
if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be
effective at any time prior to the second anniversary
of its effective date (other than such time as all
Units have been disposed of thereunder) and is not
declared effective again within 30 days, or (D)
pending the announcement of a material corporate
transaction, the Issuers issue a written notice
pursuant to Section 5(e)(v) or (vi) that a Shelf
Registration Statement or Exchange Registration
Statement is unusable and the aggregate number of
days in any 365-day period for which all such notices
issued or required to be issued, have been, or were
required to be, in effect exceeds 120 days in the
aggregate or 30 days consecutively, in the case of a
Shelf Registration statement, or 15 days in the
aggregate in the case of an Exchange Registration
Statement, then Additional Interest shall accrue on
the Notes, over and above any stated interest, at a
rate of 0.25% per annum in excess of the interest
rate of the principal amount of such Notes commencing
on (w) the 31st Business Day after the Effectiveness
Date, in the case of (A) above, or (x) the date the
Exchange Registration Statement ceases to be
effective without being declared effective again
within 30 days, in the case of clause (B) above, or
(y) the day such Shelf Registration ceases to be
effective in the case of (C) above, or (z) the day
the Exchange Registration Statement or Shelf
Registration ceases to be usable in case of clause
(D) above, such Additional Interest rate increasing
by an additional 0.25% per annum at the beginning of
each such subsequent 90-day period, subject to the
proviso in the last sentence of this paragraph;
provided, however, that the maximum Additional Interest rate
on the Notes may not exceed in the aggregate 0.50% per annum;
and provided further, that (1) upon the filing of the Exchange
Registration Statement or Initial Shelf Registration (in the
case of (i) above), (2) upon the effectiveness of the Exchange
Registration Statement or Initial Shelf Registration (in the
case of (ii) above), or (3) upon the exchange of Exchange
Units for all Units tendered (in the case of (iii)(A) above),
or upon the effectiveness of the Exchange Registration
Statement that had ceased to remain effective (in the case of
clause (iii)(B) above), or upon the effectiveness of a Shelf
Registration which had ceased to remain effective (in the case
of (iii)(C) above), Additional Interest on the Notes as a
result of such clause (or the relevant subclause thereof) or
upon the effectiveness of such Registration Statement or
Exchange Registration Statement (in the case of clause
(iii)(D) above), as the case may be, shall cease to accrue.
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(b) The Issuers shall notify the Trustee within 3 Business Days
after each and every date on which an event occurs in respect
of which Additional Interest is required to be paid (an "Event
Date"). Any amounts of Additional Interest due pursuant to
clause (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash, on the dates and in the manner provided in
the Indenture and whether or not any cash interest would then
be payable on such date, commencing with the first such
semi-annual date occurring after any such Additional Interest
commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest
rate by the principal amount of the Notes, multiplied by a
fraction, the numerator of which is the number of days such
Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve
30-day months and, 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
Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the
exchange or sale of such securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder, the
Issuers shall:
(a) Prepare and file with the SEC as soon as practicable but in
any event on or prior to the Filing Date, the Exchange
Registration Statement or if the Exchange Registration
Statement is not filed because of the circumstances
contemplated by Section 2(i), a Shelf Registration as
prescribed by Section 3, and use their reasonable best efforts
to cause each such Registration Statement to become effective
and remain effective as provided herein; provided that, if (1)
a Shelf Registration is filed pursuant to Section 3 or (2) a
Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under
the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Units during the Applicable Period
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto the Issuers shall, if
requested, furnish to and afford the Holders of the
Registrable Units to be registered pursuant to such Shelf
Registration Statement, or each Participating Broker-Dealer
and to 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 5 Business Days prior to such
filing). The Issuers shall use their reasonable best efforts
to reflect in each such Registration Statement or Prospectus
or any amendments or supplements thereto when filed with the
SEC, such comments as the Holders of a majority in aggregate
principal amount of the Registrable Units may reasonably
prepare, if the Holders must provide information for the
inclusion in such Registration Statement or prospectus or any
amendment or supplement thereto.
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(b) Provide an indenture trustee for the Registrable Units or the
Exchange Units, as the case may be, and use their reasonable
best efforts to cause the Indenture (or other indenture
relating to the Registrable Units) to be qualified under the
TIA not later than the effective date of the first
Registration Statement; and in connection therewith, use their
reasonable best efforts 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 their 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.
(c) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or
Exchange 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 them
with respect to the disposition of all securities covered by
such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a
Participating Broker-Dealer covered by any such Prospectus.
The Issuers shall not, during the Applicable Period,
voluntarily take any action that would result in selling
Holders of the Registrable Units covered by a Registration
Statement or Participating Broker-Dealers seeking to sell
Exchange Units not being able to sell such Registrable Units
or such Exchange Units during that period, unless such action
is required by applicable law, rule or regulation or permitted
by this Agreement.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request in writing (i) upon the Issuers'
receipt, a copy of the order of the SEC declaring such
Registration Statement and any post effective amendment
thereto effective, (ii) such reasonable number of copies of
such Registration Statement and of each amendment and
supplement thereto (in each case including any documents
incorporated therein by reference and all exhibits) and (iii)
such reasonable number of copies of the Prospectus included in
such Registration Statement (including each preliminary
Prospectus) and each amendment and supplement thereto, and
such reasonable number of copies of the final Prospectus as
filed by the Issuers pursuant to Rule 424(b) under the
Securities Act, in conformity with the requirements of the
Securities Act and each amendment and supplement thereto. The
Issuers hereby consent to the use of the Prospectus by each of
the selling Holders of Registrable Units 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 Units
covered by, or the sale by Participating Broker-Dealers of the
Exchange Units pursuant to, such Prospectus and any amendment
thereto.
12
(e) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Units during the
Applicable Period relating thereto, the Issuers shall notify
in writing the selling Holders of Registrable Units, 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 5 Business Days) (i) when a Prospectus or
any Prospectus supplement or post-effective amendment has been
filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective
(including in such notice a written statement that any Holder
may, upon request, obtain, without charge, one conformed copy
of such Registration Statement or post-effective amendment
including financial statements and schedules, documents
incorporated or deemed to be incorporated by reference and
exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any 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 Units the representations and warranties of the
Issuers contained in any agreement (including any underwriting
agreement) contemplated by Section 5(n) hereof cease to be
true and correct, (iv) of the receipt by the Issuers of any
notification with respect to the suspension of the
qualification or exemption from qualification of a
Registration Statement or any of the Registrable Units or the
Exchange Units to be sold by any Participating Broker-Dealer
for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition of any
information becoming known to the Issuers 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 and 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 any
reasonable determination by the Issuers that a post-effective
amendment to a Registration Statement would be appropriate.
(f) Use their 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 Units or the
Exchange Units to be sold by any Participating Broker-Dealer,
for sale in any jurisdiction, and, if any such order is
issued, to use their reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible date.
13
(g) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Units during the
Applicable Period or (C) reasonably requested in writing by
the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable
Units being sold in connection with an underwritten offering,
(i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information or revisions to
information therein relating to such underwriters or selling
Holders as the managing underwriters, if any, or such Holders
or their counsel reasonably request in writing to be included
or made therein and (ii) make all required filings of such
Prospectus supplement or such post-effective amendment as soon
as practicable after the Issuers have received notification of
the matters to be incorporated in such Prospectus supplements
or post-effective amendment.
(h) Prior to any public offering of Registrable Units or any
delivery of a Prospectus contained in the Exchange
Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Units during the Applicable Period, use
their reasonable best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Units or
each such Participating Broker-Dealer, as the case may be, the
underwriters, if any, and their respective counsel in
connection with the registration or qualification (or
exemption from such registration or qualification) of such
Registrable Units or Exchange Units, 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 any managing underwriter or
underwriters, if any, reasonably request in writing; provided
that where Exchange Units held by Participating Broker-Dealers
or Registrable Units are offered other than through an
underwritten offering, the Issuers agree to cause their
counsel to perform Blue Sky investigations and file any
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 Units held by Participating
Broker-Dealers or the Registrable Units covered by the
applicable Registration Statement; provided that neither the
Issuers nor any existing Guarantor shall be required to (A)
qualify generally to do business in any jurisdiction where it
is not then so qualified, (B) take any action that would
subject it to general service of process in any such
jurisdiction where it is not then so subject or (C) subject
itself to taxation in any such jurisdiction where it is not
then so subject.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is requested to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Units during the
Applicable Period, cooperate with the selling Holders of
Registrable Units and the managing underwriter or
14
underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Units 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 Units to
be in such denominations and registered in such names as the
managing underwriter or underwriters, if any, or Holders may
reasonably request in writing.
(j) Use their reasonable best efforts to cause the Registrable
Units covered by any Registration Statement to be registered
with or approved by such governmental agencies or authorities
as may be necessary to enable the seller or sellers thereof or
the underwriter, if any, to consummate the disposition of such
Registrable Units, except as may be required solely as a
consequence of the nature of such selling Holder's business,
in which case the Issuers will cooperate in all reasonable
respects with the filing of such Registration Statement and
the granting of such approvals; provided that neither the
Issuers nor any existing Guarantor shall 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 jurisdiction
where it is not then so subject or (C) subject itself to
taxation in any such jurisdiction where it is not then so
subject.
(k) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Units during the
Applicable Period, upon the occurrence of any event
contemplated by paragraph 5(e)(v) or 5(e)(vi) hereof, as
promptly as practicable, prepare and file with the SEC, at the
expense of the Issuers, a supplement or post-effective
amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Units being sold thereunder or
to the purchasers of the Exchange Units to whom such
Prospectus will be delivered by a Participating Broker-Dealer,
such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(l) Use their reasonable best efforts to (a) if the Registrable
Units covered by a Registration Statement have been rated
prior to the Closing Date, confirm that such ratings will
apply to the Exchange Units covered by such Registration
Statement, or (b) if the Registrable Units were not previously
rated, cause the Exchange Units covered by such Registration
Statement to be rated with the appropriate rating agencies, if
so requested in writing by the Holders of a majority in
aggregate principal amount of the Registrable Units covered by
such Registration Statement or the managing underwriter or
underwriters, if any.
15
(m) Prior to the initial issuance of the Exchange Units, (i)
provide the Trustee with one or more certificates for the
Registrable Units in a form eligible for deposit with The
Depository Trust Company and (ii) use its reasonable best
efforts to provide a CUSIP number for the Exchange Units.
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten
offerings of debt securities similar to the Units, as may be
appropriate in the circumstances) and take all such other
actions in connection therewith as may be reasonably requested
in writing by the managing underwriters, if any, or the
Holders of a majority in aggregate principal amount of the
Registrable Units being sold in order to expedite or
facilitate the registration or the disposition of such
Registrable Units, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the
underwriters, if any, with respect to the business of the
Issuers and their subsidiaries as then conducted, and the
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Units, as may be
appropriate in the circumstances, and confirm the same if and
when reasonably required; (ii) obtain opinions of counsel to
the Issuers and updates thereof (which counsel and opinions
(in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the
Holders of a majority in aggregate principal amount of the
Registrable Units being sold), addressed to each selling
Holder and each of the underwriters, if any, covering the
matters customarily covered in opinions of counsel to the
Issuers requested in underwritten offerings of debt securities
similar to the Units, as may be appropriate in the
circumstances; (iii) obtain "cold comfort" letters and updates
thereof (which letters and updates (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters) from the independent certified public
accountants of the Issuers (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Issuers or of any business acquired by the Issuers for
which financial statements and financial data are, or are
required to be, included in the 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
Units, as may be appropriate in the circumstances, and such
other matters as reasonably requested in writing by the
underwriters; and (iv) deliver such documents and certificates
as may be reasonably requested in writing by the Holders of a
majority in aggregate principal amount of the Registrable
Units being sold and the managing underwriters, if any, to
evidence the continued validity of the representations and
warranties of the Issuers and their subsidiaries made pursuant
to clause (i) above and to evidence compliance with any
conditions contained in the underwriting agreement or other
similar agreement entered into by the Issuers.
16
(o) If (1) a Shelf Registration is filed pursuant to Section 3, or
(2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Units during the
Applicable Period, make available for inspection by any
selling Holder of such Registrable Units being sold, or each
such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of
Registrable Units, 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 and pertinent corporate documents
of the Issuers and their subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and
cause the officers, directors and employees of the Issuers and
their subsidiaries to supply all information reasonably
requested in writing by any such Inspector in connection with
such Registration Statement. Each Inspector shall agree in
writing that it will keep the Records confidential and not
disclose any of the Records unless (i) the disclosure of such
Records is necessary to avoid or correct a misstatement or
omission in such Registration Statement, (ii) the release of
such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (iii) the information
in such Records is public or has been made generally available
to the public other than as a result of a disclosure or
failure to safeguard by such Inspector or (iv) disclosure of
such information is, in the reasonable written opinion of
counsel for any Inspector, necessary or advisable in
connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, related to, or
involving this Agreement, or any transaction contemplated
hereby or arising hereunder. Each selling Holder of such
Registrable Units and each such Participating Broker-Dealer
will be required to agree that information obtained by it as a
result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market
transactions in the securities of the Issuers unless and until
such is made generally available to the public. Each
Inspector, each selling Holder of such Registrable Units and
each such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction,
give notice to the Issuers and, to the extent practicable, use
their best efforts to allow the Issuers, at their expense, to
undertake appropriate action to prevent disclosure of the
Records deemed confidential at their expense.
(p) Comply with all applicable rules and regulations of the SEC
and make generally available to the security holders of the
Issuers with regard to any applicable Registration Statement
earning statements satisfying the provisions of section 11(a)
of the Securities Act and Rule 158 thereunder (or any similar
rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which
17
Registrable Units 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 Issuers after
the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer, obtain an opinion of
counsel to the Issuers (in form, scope and substance
reasonably satisfactory to the Initial Purchaser), addressed
to the Trustee for the benefit of all Holders participating in
the Exchange Offer, to the effect that (i) the Issuers and the
existing Guarantors have duly authorized, executed and
delivered the Exchange Units and the Indenture, (ii) the
Exchange Units and the Indenture constitute legal, valid and
binding obligations of the Issuers and the existing
Guarantors, enforceable against the Issuers and the existing
Guarantors in accordance with their respective terms, except
as such enforcement may be subject to customary United States
and foreign exceptions and (iii) all obligations of the
Issuers and the existing Guarantors under the Exchange Units
and the Indenture are secured to the same extent as the Units.
(r) If the Exchange Offer is to be consummated, upon delivery of
the Registrable Units by the Holders to the Issuers (or to
such other Person as directed by the Issuers) in exchange for
the Exchange Units the Issuers shall mark, or caused to be
marked, on such Registrable Units that the Exchange Units are
being issued as substitute evidence of the indebtedness
originally evidenced by the Registrable Units; provided that
in no event shall such Registrable Units be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Registrable Units covered by any
Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Units and
their respective counsel in connection with any filings
required to be made with the NASD.
(t) Use their reasonable best efforts to take all other steps
reasonably necessary to effect the registration of the
Registrable Units covered by a Registration Statement
contemplated hereby.
(u) The Issuers may require each seller of Registrable Units or
Participating Broker-Dealer as to which any registration is
being effected to furnish to the Issuers such information
regarding such seller or Participating Broker-Dealer and the
distribution of such Registrable Units as the Issuers may,
from time to time, reasonably request in writing. The Issuers
may exclude from such registration the Registrable Units of
any seller who fails to furnish such information within a
reasonable time (which time in no event shall exceed 45 days)
after receiving such request. Each seller of Registrable Units
or Participating Broker-Dealer as to which any registration is
being effected agrees to furnish promptly to the Issuer all
information required to be disclosed in order to make the
information previously furnished by such seller not materially
misleading.
18
(v) Each Holder of Registrable Units and each Participating
Broker-Dealer agrees by acquisition of such Registrable Units
or Exchange Units to be sold by such Participating
Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuers of the happening of any event of the
kind described in Section 5(e)(ii), 5(e)(iv), 5(e)(v), or
5(e)(vi), such Holder will forthwith discontinue disposition
of such Registrable Units covered by a Registration Statement
and such Participating Broker-Dealer will forthwith
discontinue disposition of such Exchange Units pursuant to any
Prospectus and, in each case, forthwith discontinue
dissemination of such Prospectus until such Holder's or
Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section
5(k), or until it is advised in writing (the "Advice") by the
Issuers that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or
supplements thereto and, if so directed by the Issuers, such
Holder or Participating Broker-Dealer, as the case may be,
will deliver to the Issuers all copies, other than permanent
file copies, then in such Holder's or Participating
Broker-Dealer's possession, of the Prospectus covering such
Registrable Units current at the time of the receipt of such
notice. In the event the Issuers 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
Participating Broker-Dealer shall have received (x) the copies
of the supplemented or amended Prospectus contemplated by
Section 5(k) or (y) the Advice.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne
by the Issuers, whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without
limitation, (i) all registration and filing fees, including,
without limitation, (A) fees with respect to filings required
to be made with the NASD in connection with any underwritten
offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws as provided in Section 5(h)
hereof, (ii) printing expenses, including, without limitation,
expenses of printing a reasonable number of Prospectuses if
the printing of Prospectuses is requested by the managing
underwriter or underwriters, if any, or by the Holders of a
majority in aggregate principal amount of the Registrable
Units included in any Registration Statement or by any
Participating Broker-Dealer during the Applicable Period, as
the case may be, (iii) messenger, telephone and delivery
expenses incurred in connection with the performance of the
their obligations hereunder, (iv) fees and disbursements of
counsel for the Issuers, (v) fees and disbursements of all
independent certified public accountants referred to in
Section 5 (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or
incident to such performance), (vi) rating agency fees, (vii)
Securities Act liability insurance, if the Issuers desires
such insurance, (viii) fees and expenses of all other Persons
retained by the Issuers, (ix) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of
officers and employees of the Issuers performing legal or
accounting duties), (x) the expense
19
of any annual audit, (xi) the fees and expenses of the Trustee
and the Exchange Agent and (xii) the expenses relating to
printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales
agreements, indentures and any other documents necessary in
order to comply with this Agreement (other than underwriting
discounts and commissions).
(b) The Issuers shall reimburse the Holders for the reasonable
fees and disbursements of not more than one counsel chosen by
the Holders of a majority in aggregate principal amount of the
Registrable Units to be included in any Registration Statement
for fees and disbursements incurred in connection with such
Registration Statement. The Issuers shall pay all documentary,
stamp, transfer or other transactional taxes (other than
federal, state or local taxes of the Initial Purchaser)
attributable to the issuance or delivery of the Exchange Units
in exchange for the Units; provided that the Issuers shall not
be required to pay taxes payable in respect of any transfer
involved in the issuance or delivery of any Exchange Unit in a
name other than that of the Holder of the Unit in respect of
which such Exchange Unit is being issued. The Issuers shall
reimburse the Holders for reasonable fees and disbursements of
not more than one counsel chosen by the Holders of a majority
in aggregate principal amount of Registrable Units relating to
any enforcement of any rights of the Holders under this
Agreement.
7. INDEMNIFICATION
(a) Indemnification by the Issuers. The Issuers and the Guarantors
jointly and severally agree to indemnify and hold harmless
each Holder of Registrable Units, Exchange Units and each
Participating Broker-Dealer selling Exchange Units during the
Applicable Period, each Person, if any, who controls each such
Holder (within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act) and the officers,
directors and partners of each such Holder, Participating
Broker-Dealer and controlling person from and against any
losses, claims, damages, liabilities, costs (including,
without limitation, reasonable costs of preparation and
reasonable attorneys' fees as provided in this Section 7) and
expenses (including, without limitation, reasonable costs and
expenses incurred in connection with investigating, preparing,
pursuing or defending against any of the foregoing)
(collectively, "Losses"), insofar as such Losses arise out of
or are based upon any untrue statement or alleged untrue
statement of a material fact in any Registration Statement,
Prospectus or form of prospectus, or in any amendment or
supplement thereto, or in any preliminary prospectus, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, except insofar as such Losses
result primarily from information relating to such Holder or
Participating Broker-Dealer and furnished in writing to the
Issuers (or reviewed and approved in writing) by such Holder
or Participating Broker-Dealer or their counsel expressly for
use therein; provided, however, that the Issuers and the
Guarantors will not be liable to any Indemnified Party (as
defined below) under this Section 7 to the extent
20
Losses resulted primarily from an untrue statement or omission
or alleged untrue statement or omission that was contained or
made in any preliminary prospectus and corrected in the
Prospectus or any amendment or supplement thereto if (i) any
such Losses resulted from an action, claim or suit by any
Person who purchased Registrable Units or Exchange Units which
are the subject thereof from such Indemnified Party and (ii)
it is established in the related proceeding that such
Indemnified Party failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or
prior to the confirmation of the sale of such Registrable
Units or Exchange Units sold to such Person if required by
applicable law, unless such failure to deliver or provide a
copy of the Prospectus (as amended or supplemented) was a
result of noncompliance by the Issuers with Section 5 of this
Agreement.
(b) Indemnification by Holder. Each Holder shall indemnify and
hold harmless the Issuers, the Guarantors, their respective
directors and each Person, if any, who controls the Issuers
(within the meaning of Section 15 of the Securities Act and
Section 20(a) of the Exchange Act), and the directors,
officers and partners of such controlling persons, from and
against all Losses insofar as such Losses arise out of or are
based upon any untrue statement or alleged untrue statement of
a material fact in any Registration Statement, Prospectus or
form of prospectus or in any amendment or supplement thereto
or in any preliminary prospectus, or 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 light of the circumstances under which they were made, not
misleading insofar as such Losses are finally judicially
determined by a court of competent jurisdiction to have
resulted primarily from any untrue statement or alleged untrue
statement of any material fact, alleged omission of any
material fact contained in or omitted from any information so
furnished in writing by such Holder to the Issuers expressly
for use in any such Registration Statement, Prospectus or form
of prospectus or in any amendment or supplement thereto or in
any preliminary prospectus. Notwithstanding the foregoing, in
no event shall the liability of any selling Holder be greater
in amount than the dollar amount of the proceeds (net of
payment of all expenses) received by such Holder upon the sale
of the Registrable Units giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any proceeding
shall be brought or asserted against any Person entitled to
indemnity hereunder (an "Indemnified Party"), such Indemnified
Party shall promptly notify the party or parties from which
such indemnity is sought (the "Indemnifying Party" or
"Indemnifying Parties", as applicable) in writing; provided,
that the failure to so notify the Indemnifying Parties shall
not relieve the Indemnifying Parties from any obligation or
liability except to the extent (but only to the extent) that
it shall be finally determined by a court of competent
jurisdiction (which determination is not subject to appeal)
that the Indemnifying Parties have been prejudiced materially
by such failure.
21
The Indemnifying Party shall have the right, exercisable by giving
written notice to an Indemnified Party, within 20 Business Days after receipt of
written notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this
Section 7 is unavailable to an Indemnified Party or is
insufficient to hold such Indemnified Party harmless for any
Losses in respect of which this Section 7 would otherwise
apply by its terms (other than by reason of exceptions
provided in this Section 7), then each applicable Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall
have a joint and several obligation to contribute to the
amount paid or payable by such Indemnified Party as a result
of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party, on the
one hand, and such Indemnified Party, on the other hand, in
connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant
equitable considerations. The relative fault of such
Indemnifying Party, on the one hand, and Indemnified Party, on
the other hand, shall be determined by
22
reference to, among other things, whether any untrue or
alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to
information supplied by such Indemnifying Party or Indemnified
Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such
statement or omission. The amount paid or payable by an
Indemnified Party as a result of any Losses shall be deemed to
include any reasonable legal or other fees or expenses
incurred by such party in connection with any proceeding, to
the extent such party would have been indemnified for such
fees or expenses if the indemnification provided for in
Section 7(a) or 7(b) was available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7(d) were determined by pro rata
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 7(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Units or Exchange Units over
(ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 7
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
8. RULES 144 AND 144A
The Issuers covenant that they shall file the reports required to be
filed by them (if so required) under the Securities Act and the Exchange Act in
a timely manner and, if at any time the Issuers are not required to file such
reports, it will, upon the written request of any Holder of Registrable Units,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A. Upon the request of any Holder, the Issuers shall deliver to
such Holder a written statement as to whether they have complied with such
information and requirements.
9. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE UNITS
If any of the Registrable Units covered by any Shelf Registration is 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 Units
included in such offering; provided, however, that such investment banker or
investment bankers and manager or managers must be reasonably acceptable to the
Issuers and such Holders shall be responsible for all underwriting commissions
in connection therewith.
23
No Holder of Registrable Units may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Units 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. SEPARATION EVENT
If a Separation Event occurs at any time prior to the consummation of
the Exchange Offer of the Units pursuant to this Agreement, all terms and
conditions set forth under this Agreement shall apply to each of the U.S. Notes
and U.K. Notes (as independent securities) and each of the defined terms "U.S.
Notes" and the "U.K. Notes" shall replace "Units" where appropriate and
applicable so that the U.S. Notes and U.K. Notes shall have the same rights and
obligations under this Agreement as the Units had under this Agreement prior to
the occurrence of such Separation Event.
11. MISCELLANEOUS
(a) No Inconsistent Agreements. The Issuers have not entered, as
of the date hereof, and the Issuers shall not enter, after the
date of this Agreement, into any agreement with respect to any
of its securities that is inconsistent with the rights granted
to the Holders of Securities in this Agreement or otherwise
conflicts with the provisions hereof. The Issuers have not
entered and will not enter into any agreement with respect to
any of their securities that will grant to any Person
piggy-back rights with respect to a Registration Statement.
(b) 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 the
Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Units in
circumstances that would adversely affect any Holders of
Registrable Units; provided, however, that Section 7 and this
Section 11(b) may not be amended, modified or supplemented
without the prior written consent of each Holder.
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
Units whose securities are being tendered pursuant to the
Exchange Offer or sold pursuant to a Units Registration
Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of
Registrable Units may be given by Holders of at least a
majority in aggregate principal amount of the Registrable
Units being tendered or being sold by such Holders pursuant to
such Units Registration Statement.
24
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or
telecopier:
(i) if to a Holder of Securities or to 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 of
the Units, with a copy in like manner to the Initial
Purchaser as follows:
Jefferies & Company, Inc.
520 Madison Avenue, 12th Floor
New York, NY 10022
Facsimile No.: (212) 284-2479
Attention: General Counsel
with a copy to:
Mayer, Brown, Rowe & Maw LLP
1675 Broadway
New York, New York 10019
Facsimile No.: (212) 262-1910
Attention: Ronald S. Brody, Esq.
(ii) if to the Initial Purchaser, at the address specified
in Section 11(c)(i);
(iii) if to the Issuers, as follows:
MSX International, Inc.
22355 West Eleven Mile Road
Southfield, MI 48304-4375
Facsimile No.: (248) 829-6340
Attention: Corporate Legal Department
MSX International Limited
22355 West Eleven Mile Road
Southfield, MI 48304-4375
Facsimile No.: (248) 829-6340
Attention: Corporate Legal Department
with a copy to:
Dechert LLP
4000 Bell Atlantic Tower
1717 Arch Street
Philadelphia, PA 19103
Facsimile No.: (215) 655-2491
Attention: Craig L. Godshall, Esq.
25
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; three business days
after being deposited in the United States mail, postage prepaid, if mailed; one
business day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(d) 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, including, without limitation and
without the need for an express assignment, subsequent Holders
of Securities.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAW. THE ISSUERS
HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPT FOR THEIR AND IN RESPECT OF
THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF
THE AFORESAID COURTS. THE ISSUERS IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, TRIAL BY JURY AND ANY OBJECTION THAT THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. THE ISSUERS IRREVOCABLY
CONSENT, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR
26
CERTIFIED MAIL, POSTAGE PREPAID, TO THE ISSUERS AT THEIR SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
ISSUERS IN ANY OTHER JURISDICTION.
(h) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction
to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no
way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and
restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(i) Securities Held by the Issuers or Their Affiliates. Whenever
the consent or approval of Holders of a specified percentage
of Securities is required hereunder, Securities held by the
Issuers or their affiliates (as such term is defined in Rule
405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
(j) Third Party Beneficiaries. Holders and Participating
Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(k) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is
intended by the parties as a final and exclusive statement of
the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and
any and all prior oral or written agreements, representations,
or warranties, contracts, understanding, correspondence,
conversations and memoranda between the Initial Purchaser on
the one hand and the Issuers 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.
27
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the date first written above.
MSX INTERNATIONAL, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MSX INTERNATIONAL LIMITED
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Director
MSX INTERNATIONAL (HOLDINGS), INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MSX INTERNATIONAL SERVICES (HOLDINGS), INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
MSX INTERNATIONAL EUROPEAN (HOLDINGS), L.L.C.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MSX INTERNATIONAL DEALERNET SERVICES, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MSX INTERNATIONAL BUSINESS SERVICES, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
CREATIVE TECHNOLOGY SERVICES, L.L.C.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
MSX INTERNATIONAL TECHNOLOGY SERVICES, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MSX INTERNATIONAL ENGINEERING SERVICES, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
INTRANATIONAL COMPUTER CONSULTANTS, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
PROGRAMMING MANAGEMENT & SYSTEMS, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
CHELSEA COMPUTER CONSULTANTS, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MILLENNIUM COMPUTER SYSTEMS, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MANAGEMENT RESOURCES INTERNATIONAL, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
PILOT COMPUTER SERVICES, INCORPORATED
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
MSX INTERNATIONAL PLATFORM SERVICES, LLC
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MEGATECH ENGINEERING, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
MSX INTERNATIONAL STRATEGIC TECHNOLOGY, INC.
By: /s/ Frederick K. Minturn
--------------------------------------------
Name: Frederick K. Minturn
Title: Vice President
REGISTRATION RIGHTS AGREEMENT
ACCEPTED AND AGREED TO:
JEFFERIES & COMPANY, INC.
By: /s/ Douglas R. Speegle
---------------------------
Name: Douglas R. Speegle
Title: Managing Director
REGISTRATION RIGHTS AGREEMENT