EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF NOVEMBER 22, 2002
AMONG
NATIONAL-OILWELL, INC.
AND
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 22nd day of November, 2002 among National-Oilwell, Inc., a
Delaware corporation (the "Company"), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement,
dated November 15, 2002, among the Company and the Initial Purchaser (the
"Purchase Agreement"), which provides for the sale by the Company to the Initial
Purchaser of an aggregate of $200 million principal amount of the Company's
5.65% Senior Notes due 2012 (the "Securities"). In order to induce the Initial
Purchaser to enter into the Purchase Agreement, the Company has agreed to
provide to the Initial Purchaser and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 Act" shall mean the Securities Exchange Act of l934, as
amended from time to time.
"Closing Date" shall mean the Closing Time as defined in the
Purchase Agreement.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Securities for Registrable Securities pursuant to Section
2.1 hereof.
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"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2.1 hereof.
"Exchange Securities" shall mean the 5.65% Senior Notes due
2012, Series B issued by the Company under the Indenture containing
terms identical to the Securities in all material respects (except for
references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the
Exchange Offer.
"Holder" shall mean the Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its successors, assigns
and direct and indirect transferees who become registered owners of
Registrable Securities under the Indenture and each Participating
Broker-Dealer that holds Exchange Securities for so long as such
Participating Broker-Dealer is required to deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale of such
Exchange Securities.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of November 22, 2002, between the Company and The
Bank of New York, as trustee, as the same may be amended, supplemented,
waived or otherwise modified from time to time in accordance with the
terms thereof.
"Initial Purchaser" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided, however, that whenever the consent or
approval of Holders of a specified percentage of Registrable Securities
is required hereunder, Registrable Securities held by the Company and
other obligors on the Securities or any Affiliate (as defined in the
Indenture) of the Company shall be disregarded in determining whether
such consent or approval was given by the Holders of such required
percentage amount.
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"Participating Broker-Dealer" shall mean Merrill Lynch,
Pierce, Fenner & Smith Incorporated and any other broker-dealer which
makes a market in the Securities and exchanges Registrable Securities
in the Exchange Offer for Exchange Securities.
"Person" shall mean an individual, partnership (general or
limited), corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any such prospectus supplement with respect to
the terms of the offering of any portion of the Registrable Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a prospectus, including post-effective amendments,
and in each case including all material incorporated by reference
therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Securities" shall mean the Securities; provided,
however, that Securities shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Securities shall have
been declared effective under the 1933 Act and such Securities shall
have been disposed of pursuant to such Registration Statement, (ii)
such Securities have been sold to the public pursuant to Rule l44 (or
any similar provision then in force, but not Rule 144A) under the 1933
Act or are eligible to be sold to the public pursuant to Rule 144(k)
under the 1933 Act, (iii) such Securities shall have ceased to be
outstanding or (iv) the Exchange Offer is consummated (except in the
case of Securities purchased from the Company and continued to be held
by the Initial Purchaser).
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. (the "NASD")
registration and filing fees, including, if applicable, the fees and
expenses of any "qualified independent underwriter" (and its counsel)
that is required to be retained by any holder of Registrable Securities
in accordance with the rules and regulations of the NASD, (ii) all fees
and expenses incurred in connection with compliance with state
securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of one firm of legal
counsel for any underwriters or Holders in
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connection with blue sky qualification of any of the Exchange
Securities or Registrable Securities and any filings with the NASD),
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any securities
exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and
expenses of the Initial Purchaser in connection with the Exchange
Offer, including the reasonable fees and expenses of one firm of legal
counsel to the Initial Purchaser in connection therewith, (ix) the
reasonable fees and disbursements of one law firm of special counsel
representing the Holders of Registrable Securities and (x) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the fees and expenses of any
special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.
"Registration Statement" shall mean any registration statement
of the Company which covers any of the Exchange Securities or
Registrable Securities pursuant to the provisions of this Agreement,
and all amendments and supplements to any such Registration Statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or government body performing the functions currently
performed by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2.2 of this Agreement which covers all of the Registrable
Securities on an appropriate form under Rule 415 under the 1933 Act, or
any similar rule that may be adopted by the SEC, and all amendments and
supplements to such registration statement, including post-
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effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
2. Registration Under the 1933 Act.
2.1 Exchange Offer. The Company shall, for the benefit of
the Holders, at the Company's cost, (A) prepare and, as soon as practicable but
not later than 105 days following the Closing Date, file with the SEC an
Exchange Offer Registration Statement on an appropriate form under the 1933 Act
with respect to a proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Registrable Securities, of a like principal amount
of Exchange Securities, (B) use its reasonable best efforts to cause the
Exchange Offer Registration Statement to be declared effective under the 1933
Act within 150 days of the Closing Date, (C) use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) use its reasonable best efforts to cause the Exchange
Offer to be consummated not later than 180 days following the Closing Date. The
Exchange Securities will be issued under the Indenture. Upon the effectiveness
of the Exchange Offer Registration Statement, the Company shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) is not a
broker-dealer tendering Registrable Securities acquired directly from the
Company for its own account, (c) acquired the Exchange Securities in the
ordinary course of such Holder's business and (d) has no arrangements or
understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the registration requirements of the 1933 Act and under state securities
or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(a) mail as promptly as practicable to each
Holder a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Exchange Offer open for acceptance
for a period of not less than 30 calendar days after the date
notice thereof is mailed to the
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Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period");
(c) utilize the services of the Depositary for
the Exchange Offer;
(d) permit Holders to withdraw tendered
Registrable Securities at any time prior to 5:00 p.m. (Eastern
Time), on the last business day of the Exchange Period, by
sending to the institution specified in the notice, a
telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of
Registrable Securities delivered for exchange, and a statement
that such Holder is withdrawing such Holder's election to have
such Securities exchanged;
(e) notify each Holder that any Registrable
Security not tendered will remain outstanding and continue to
accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchaser and
Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all material respects
with all applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer,
the Company shall:
(i) accept for exchange all Registrable
Securities duly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with the
terms of the Exchange Offer Registration Statement
and the letter of transmittal which shall be an
exhibit thereto;
(ii) deliver or cause to be delivered to
the Trustee for cancellation all Registrable
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to
authenticate and deliver Exchange Securities to each
Holder of Registrable Securities so accepted for
exchange in a principal amount equal to the principal
amount of the Registrable Securities of such Holder
so accepted for exchange.
The Exchange Securities 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 Trust
Indenture Act of 1939, as amended (the "TIA"), or is
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exempt from such qualification, and shall provide that the F Exchange Securities
shall not be subject to the transfer restrictions set forth in the Indenture.
Interest on each Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities surrendered in
exchange therefor or, if no interest has been paid on the Registrable
Securities, from the date of original issuance. The Exchange Offer shall not be
subject to any conditions, other than (i) that the Exchange Offer, or the making
of any exchange by a Holder, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii) the due tendering of Registrable
Securities in accordance with the Exchange Offer, (iii) that each Holder of
Registrable Securities exchanged in the Exchange Offer shall have represented
that all Exchange Securities to be received by it shall be acquired in the
ordinary course of its business and that at the time of the consummation of the
Exchange Offer it shall have no arrangement or understanding with any person to
participate in the distribution (within the meaning of the 1933 Act) of the
Exchange Securities and shall have made such other representations as may be
reasonably necessary under applicable SEC rules, regulations or interpretations
to render the use of Form S-4 or other appropriate form under the 1933 Act
available and (iv) that no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with respect to
the Exchange Offer which, in the Company's judgment, would reasonably be
expected to impair the ability of the Company to proceed with the Exchange
Offer. The Company shall inform the Initial Purchaser of the names and addresses
of the Holders to whom the Exchange Offer is made, and the Initial Purchaser
shall have the right to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
2.2 Shelf Registration. (i) If, because of any changes in
law, SEC rules or regulations or applicable interpretations thereof by the staff
of the SEC, the Company is not permitted to effect the Exchange Offer as
contemplated by Section 2.1 hereof, (ii) if for any other reason the Exchange
Offer Registration Statement is not declared effective within 150 days following
the Closing Date or the Exchange Offer is not consummated within 180 days after
the Closing Date, (iii) upon the request of the Initial Purchaser (but only with
respect to any Registrable Securities which the Initial Purchaser acquired
directly from the Company) or (iv) if a Holder is not permitted by the federal
securities laws or applicable interpretations thereof by the staff of the SEC to
participate in the Exchange Offer or does not receive fully tradeable Exchange
Securities pursuant to the Exchange Offer, then in case of each of clauses (i)
through (iv) the Company shall, at its cost:
(a) As promptly as practicable, file with the
SEC, and thereafter shall use its reasonable best efforts to
cause to be declared effective as promptly as practicable but
no later than 210 days after the Closing Date, a
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Shelf Registration Statement relating to the offer and sale of
the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the
Majority Holders participating in the Shelf Registration and
set forth in such Shelf Registration Statement; provided,
however, that with respect to Exchange Securities received by
a broker-dealer in exchange for any securities that were
acquired by such broker-dealer as a result of market making or
other trading activities, the Company may, if permitted by
then applicable federal securities laws and interpretations
thereof by the SEC, file one or more post-effective amendments
to the Exchange Offer Registration Statement in satisfaction
of its obligations under this paragraph (a) solely with
respect to broker-dealers who acquired their securities as a
result of market making or other trading activities and use
its reasonable best efforts to keep such Exchange Offer
Registration Statement, as so amended, continuously effective
for such period of time as may be necessary to permit such
broker-dealers to comply with the applicable prospectus
delivery requirements under the 1933 Act and as otherwise
required herein; and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf
Registration Statement;
(b) Use its reasonable best efforts to keep the
Shelf Registration Statement continuously effective in order
to permit the Prospectus forming part thereof to be usable by
Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the SEC, or
for such shorter period that will terminate when all
Registrable Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding or otherwise cease to be
Registrable Securities (the "Effectiveness Period"); provided,
however, that the Company shall not be obligated to keep such
Shelf Registration Statement effective if (A) any event occurs
or facts are discovered which make any statement made in such
Shelf Registration Statement or the related Prospectus untrue
in any material respect or which require the making of any
changes in such Shelf Registration Statement or Prospectus in
order to make the statements therein not misleading; (B) the
Company determines, in its reasonable judgment, upon advice of
counsel, as authorized by a resolution of its Board of
Directors, that the continued effectiveness and useability of
such Shelf Registration Statement would (x) require the
disclosure of material information, which the Company has a
bona fide business reason for preserving as confidential, or
(y) interfere with any financing, acquisition, corporate
reorganization or other material transaction involving the
Company or any of its subsidiaries, and provided,
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further, that the failure to keep such Shelf Registration
Statement effective and usable for offers and sales of
Registrable Securities for any of the foregoing reasons shall
last no longer than 45 days in any 12-month period whereafter
Additional Interest (as defined in Section 2.5) shall become
payable in accordance with Section 2.5, and (B) the Company
thereafter complies as promptly as practicable with the
requirements of Section 3(k) hereof, if applicable. Any such
period during which the Company is excused from keeping the
Shelf Registration Statement effective and usable for offers
and sales of Registrable Securities is referred to herein as a
"Suspension Period"; a Suspension Period shall commence on and
include the date that the Company gives prompt notice to the
Holders that the Shelf Registration Statement is no longer
effective or the prospectus included therein is no longer
usable for offers and sales of Registrable Securities as a
result of the application of the proviso (which contains
clauses (A) and (B)) of the foregoing sentence and shall end
on the earlier to occur of (1) the date on which each seller
of Registrable Securities covered by the Shelf Registration
Statement either receives the copies of the supplemented or
amended prospectus contemplated by Section 3(k) hereof or is
advised in writing by the Company as promptly as practicable
following its determination that use of the prospectus may be
resumed and (2) the expiration of 45 days in any 12-month
period during which one or more Suspension Periods has been in
effect. The Company shall extend the Effectiveness Period (or
the period during which Participating Broker-Dealers are
entitled to use the prospectus included in the Exchange Offer
Registration Statement in connection with the resale of the
Exchange Securities, as the case may be) by the number of days
during either such period from and including the date of the
giving of such notice to and including the date which is the
earlier to occur as described in the preceding sentence.
(c) Notwithstanding any other provisions hereof,
use its reasonable best efforts to ensure that (i) any Shelf
Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any supplement thereto
complies in all material respects with the 1933 Act and the
rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, 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 not misleading and
(iii) any Prospectus forming part of any Shelf Registration
Statement, and any supplement to such Prospectus (as amended
or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the
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statements, in light of the circumstances under which they
were made, not misleading.
Without the consent of the Initial Purchaser, which consent
shall not be unreasonably withheld, the Company shall not permit any securities
other than Registrable Securities to be included in the Shelf Registration
Statement. The Company further agrees, if necessary, to supplement or amend the
Shelf Registration Statement, as required by Section 3(b) below, and to furnish
to the Holders of Registrable Securities copies of any such supplement or
amendment promptly after its being used or filed with the SEC.
2.3 Expenses. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2.1 or 2.2.
Each Holder shall pay all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of such Holder's Registrable
Securities pursuant to the Shelf Registration Statement.
2.4. Effectiveness. (a) The Company will be deemed not to
have used its reasonable best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, to become, or
to remain, effective during the requisite period if the Company voluntarily
takes any action that would, or omits to take any action which omission would,
result in any such Registration Statement not being declared effective or in the
Holders of Registrable Securities covered thereby not being able to exchange or
offer and sell such Registrable Securities during that period as and to the
extent contemplated hereby, unless such action is required by applicable law.
(b) An Exchange Offer Registration Statement
pursuant to Section 2.1 hereof or a Shelf Registration
Statement pursuant to Section 2.2 hereof will not be deemed to
have become effective unless it has been declared effective by
the SEC; provided, however, that if, after it has been
declared effective, the offering of Registrable Securities
pursuant to an Exchange Offer Registration Statement or a
Shelf Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or
any other governmental agency or court, such Registration
Statement will be deemed not to have become effective during
the period of such interference, until the offering of
Registrable Securities pursuant to such Registration Statement
may legally resume.
2.5 Interest. In the event that either (a) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to the
105th calendar day following the Closing Date, (b) the Exchange Offer
Registration Statement has not been
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declared effective on or prior to the 150th calendar day following the Closing
Date, (c) the Exchange Offer is not consummated on or prior to the 180th
calendar day following the Closing Date, or (d) a Shelf Registration Statement
is not declared effective on or prior to the 210th calendar day following the
Closing Date (each such event referred to in clauses (a) through (d) above, a
"Registration Default"), the interest rate borne by the Securities shall be
increased ("Additional Interest") by one-quarter of one percent per annum upon
the occurrence of each Registration Default, which rate will increase by one
quarter of one percent each 90-day period that such Additional Interest
continues to accrue under any such circumstance, provided that the maximum
aggregate increase in the interest rate will in no event exceed one-half of one
percent (0.50%) per annum. Following the cure of all Registration Defaults the
accrual of Additional Interest will cease and the interest rate will revert to
the original rate.
If the Shelf Registration Statement is unusable by the Holders
for any reason (including without limitation any of the reasons described in
clauses (A) or (B) of Section 2.2(b)) and the aggregate number of days in any
consecutive twelve-month period for which the Shelf Registration Statement shall
not be usable exceeds 45 days in the aggregate, then the interest rate borne by
the Securities will be increased by 0.25% per annum of the principal amount of
the Securities for the first 90-day period (or portion thereof) beginning on the
46th such date that such Shelf Registration Statement ceases to be usable, which
rate shall be increased by an additional 0.25% per annum of the principal amount
of the Securities at the beginning of each subsequent 90-day period, provided
that the maximum aggregate increase in the interest rate will in no event exceed
one-half of one percent (0.50%) per annum. Any amounts payable under this
paragraph shall also be deemed "Additional Interest" for purposes of this
Agreement. Upon the Shelf Registration Statement once again becoming usable, the
interest rate borne by the Securities will be reduced to the original interest
rate if the Company is otherwise in compliance with this Agreement at such time.
Additional Interest shall be computed based on the actual number of days elapsed
in each 90-day period in which the Shelf Registration Statement is unusable.
The Company shall notify the Trustee within three business
days after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Additional
Interest shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of Registrable Securities, on or before the applicable semiannual
interest payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date to the record Holder of Securities entitled to
receive the interest payment to be paid on such date as set forth in the
Indenture. Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.
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3. Registration Procedures.
In connection with the obligations of the Company with respect
to Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the SEC a Registration
Statement, within the relevant time period specified in
Section 2, on the appropriate form under the 1933 Act, which
form (i) shall be selected by the Company, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof, (iii)
shall comply as to form in all material respects with the
requirements of the applicable form and include or incorporate
by reference all financial statements required by the SEC to
be filed therewith or incorporated by reference therein, and
(iv) shall comply in all respects with the requirements of
Regulation S-T under the 1933 Act, and use its reasonable best
efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2
hereof;
(b) prepare and file with the SEC such
amendments and post-effective amendments to each Registration
Statement as may be necessary under applicable law to keep
such Registration Statement effective for the applicable
period; and cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provision then in
force) under the 1933 Act and comply with the provisions of
the 1933 Act, the 1934 Act and the rules and regulations
thereunder applicable to them with respect to the disposition
of all securities covered by each Registration Statement
during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders
thereof (including sales by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i)
notify each Holder of Registrable Securities, at least five
business days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of
Registrable Securities will be made in accordance with the
method selected by the Majority Holders participating in the
Shelf Registration; (ii) furnish to each Holder of Registrable
Securities and to each underwriter of an underwritten offering
of Registrable Securities, if any, without charge, as many
copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or underwriter may reasonably
request, including financial
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statements and schedules and, if the Holder so requests, all
exhibits in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) hereby
consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of
Registrable Securities in connection with the offering and
sale of the Registrable Securities covered by the Prospectus
or any amendment or supplement thereto;
(d) use its reasonable best efforts to register
or qualify the Registrable Securities under all applicable
state securities or "blue sky" laws of such jurisdictions as
any Holder of Registrable Securities covered by a Registration
Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time
the applicable Registration Statement is declared effective by
the SEC, and do any and all other acts and things which may be
reasonably necessary or advisable to enable each such Holder
and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such
Holder; provided, however, that the Company shall not be
required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), or
(ii) take any action which would subject it to general service
of process or taxation in any such jurisdiction where it is
not then so subject;
(e) notify promptly each Holder of Registrable
Securities under a Shelf Registration or any Participating
Broker-Dealer who has notified the Company that it is
utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below and, if requested by such
Holder or Participating Broker-Dealer, confirm such advice in
writing promptly (i) when a Registration Statement has become
effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by
the SEC or any state securities authority for post-effective
amendments and supplements to a Registration Statement and
Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the
issuance by the SEC or any state securities authority of any
stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between
the effective date of a Registration Statement and the closing
of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any
underwriting agreement, securities sales agreement or other
similar agreement, if any, relating to the offering cease to
be true and correct in all material respects, (v) of the
happening of any event or the discovery of any
14
facts during the period a Shelf Registration Statement is
effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such
Registration Statement or Prospectus in order to make the
statements therein not misleading, (vi) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Registrable Securities or the
Exchange Securities, as the case may be, for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose and (vii) of any determination by
the Company that a post-effective amendment to such
Registration Statement would be appropriate;
(f) (A) in the case of the Exchange Offer
Registration Statement (i) include in the Exchange Offer
Registration Statement a section entitled "Plan of
Distribution" which section shall be reasonably acceptable to
the Initial Purchaser on behalf of the Participating
Broker-Dealers, and which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC
with respect to the potential "underwriter" status of any
broker-dealer that holds Registrable Securities acquired for
its own account as a result of market-making activities or
other trading activities and that will be the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have been
publicly disseminated by the staff of the SEC or such
positions or policies, in the reasonable judgment of the
Initial Purchaser on behalf of the Participating
Broker-Dealers and its counsel, represent the prevailing views
of the staff of the SEC, including a statement that any such
broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed a
statutory underwriter and must deliver a prospectus meeting
the requirements of the 1933 Act in connection with any resale
of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company
the notice referred to in Section 3(e), without charge, as
many copies of each Prospectus included in the Exchange Offer
Registration Statement, including any preliminary prospectus,
and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to
the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto,
by any Person subject to the prospectus delivery requirements
of the SEC, including all Participating Broker-Dealers, in
connection with the sale or transfer of the Exchange
Securities covered by the Prospectus or any amendment or
supplement thereto, and (iv) include in the transmittal letter
or similar
15
documentation to be executed by an exchange offeree in order
to participate in the Exchange Offer (x) the following
provision:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the 1933 Act in connection with any resale of
Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection with the
exchange of Registrable Securities, the broker-dealer will not be deemed to
admit that it is an underwriter within the meaning of the 1933 Act; and
(B) in the case of any Exchange Offer
Registration Statement, the Company agrees to use its reasonable best efforts to
cause to be delivered to the Initial Purchaser on behalf of the Participating
Broker-Dealers upon the effectiveness of the Exchange Offer Registration
Statement a comfort letter or comfort letters in customary form to the extent
permitted by Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accountants (or if such a comfort letter is not permitted, an
agreed upon procedures letter in customary form) from the Company's independent
certified public accountants (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements are, or are required to be,
included in the Registration Statement) at least as broad in scope and coverage
as the comfort letter or comfort letters delivered to the Initial Purchaser in
connection with the initial sale of the Securities to the Initial Purchaser;
(g) (i) in the case of an Exchange Offer,
furnish to one firm of legal counsel for the Initial Purchaser
and (ii) in the case of a Shelf Registration, furnish to one
firm of legal counsel for the Holders of Registrable
Securities copies of any comment letters received from the SEC
or any other request by the SEC or any state securities
authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(h) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement as soon as practicable;
16
(i) in the case of a Shelf Registration, furnish
to each Holder of Registrable Securities, and each
underwriter, if any, without charge, at least one conformed
copy of each Registration Statement and any post-effective
amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference
and all exhibits thereto, unless requested);
(j) in the case of a Shelf Registration,
cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent
with the provisions of the Indenture) and registered in such
names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the
closing of any sale of Registrable Securities;
(k) in the case of a Shelf Registration, upon
the occurrence of any event or the discovery of any facts,
each as contemplated by Sections 3(e)(v) and 3(e)(vi) hereof,
as promptly as practicable after the occurrence of such an
event, use its reasonable best efforts to prepare a supplement
or post-effective amendment to the Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable
Securities or Participating Broker-Dealers, such Prospectus
will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or
will remain so qualified. At such time as such public
disclosure is otherwise made or the Company determines that
such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted
material fact, the Company agrees promptly to notify each
Holder of such determination and to furnish each Holder such
number of copies of the Prospectus as amended or supplemented,
as such Holder may reasonably request;
(m) obtain a CUSIP number for all Exchange
Securities or Registrable Securities, as the case may be, not
later than the effective date of a Registration Statement, and
provide the Trustee with any necessary printed certificates
for the Exchange Securities or the Registrable Securities, as
the case may be, in a form eligible for deposit with the
Depositary;
17
(n) (i) use its reasonable best efforts cause
the Indenture to be qualified under the TIA in connection with
the registration of the Exchange Securities or Registrable
Securities, as the case may be, (ii) cooperate with the
Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii)
execute, and use its reasonable best efforts to cause the
Trustee to execute, all documents as may be required to effect
such changes, and all other forms and documents required to be
filed with the SEC to enable the Indenture to be so qualified
in a timely manner;
(o) in the case of a Shelf Registration, enter
into agreements (including underwriting agreements) and take
all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Registrable
Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not the
registration is an underwritten registration:
(i) make such representations and
warranties to the Holders of such Registrable
Securities and the underwriters, if any, in form,
substance and scope as are customarily made by
issuers to underwriters in similar underwritten
offerings as may be reasonably requested by them;
(ii) obtain opinions of counsel to the
Company 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 principal
amount of the Registrable Securities being sold)
addressed to each selling Holder and the
underwriters, if any, covering the matters
customarily covered in opinions requested in sales of
securities or underwritten offerings and such other
matters as may be reasonably requested by such
Holders and underwriters;
(iii) obtain "cold comfort" letters and
updates thereof from the Company's independent
certified public accountants (and, if necessary, any
other independent certified public accountants of any
subsidiary of the Company or of any business acquired
by the Company for which financial statements are, or
are required to be, included in the Registration
Statement) addressed to the underwriters, if any, and
use reasonable efforts to have such letter addressed
to the selling Holders of Registrable Securities (to
the extent consistent with Statement on Auditing
Standards No. 72 of the
18
American Institute of Certified Public Accounts),
such letters to be in customary form and covering
matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with
similar underwritten offerings;
(iv) if requested by the Majority
Holders, enter into a securities sales agreement with
the Holders and an agent of the Holders providing
for, among other things, the appointment of such
agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which
agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is
entered into, cause the same to set forth
indemnification provisions and procedures
substantially equivalent to the indemnification
provisions and procedures set forth in Section 4
hereof with respect to the underwriters and all other
parties to be indemnified pursuant to said Section
or, at the request of any underwriters, in the form
customarily provided to such underwriters in similar
types of transactions; and
(vi) deliver such documents and
certificates as may be reasonably requested and as
are customarily delivered in similar offerings to the
Holders of a majority in principal amount of the
Registrable Securities being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(p) in the case of a Shelf Registration, make
available for inspection by representatives of the Holders of
the Registrable Securities, one firm of legal counsel and one
accountant retained by such representatives, representatives
of the underwriters participating in any disposition pursuant
to a Shelf Registration Statement, and one firm of legal
counsel and one accountant retained by such representatives,
all financial and other records, pertinent corporate documents
and properties of the Company reasonably requested by any such
persons, and cause the respective officers, directors,
employees, and any other agents of the Company to supply all
information reasonably requested by any such representative,
underwriter, special counsel or accountant in connection
19
with a Registration Statement, and make such representatives
of the Company available for discussion of such documents as
shall be reasonably requested by the Initial Purchaser;
provided that any such records, documents, properties and such
information shall be kept confidential by any such Persons and
shall be used only in connection with such Registration
Statement, unless disclosure thereof is made in connection
with a court proceeding or required by law or such records,
documents, properties or information (i) is already in the
possession of such Persons and was obtained by such Persons
without an accompanying obligation of confidentiality or (ii)
has become available (not in violation of this agreement) to
the public generally or through a third party without an
accompanying obligation of confidentiality, and the Company
shall be entitled to request that such Persons sign a
customary confidentiality agreement to the foregoing effect in
a form reasonably acceptable to the parties thereto;
(q) (i) in the case of an Exchange Offer
Registration Statement, a reasonable time prior to the filing
of any Exchange Offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to such
Prospectus, provide copies of such document to the Initial
Purchaser and to one firm of legal counsel to the Holders of
Registrable Securities and make such changes in any such
document prior to the filing thereof as the Initial Purchaser
or such counsel to the Holders of Registrable Securities may
reasonably request and, except as otherwise required by
applicable law, not file any such document in a form to which
the Initial Purchaser on behalf of the Holders of Registrable
Securities and one firm of legal counsel to the Holders of
Registrable Securities shall not have previously been advised
and furnished a copy of or to which the Initial Purchaser on
behalf of the Holders of Registrable Securities or such
counsel to the Holders of Registrable Securities shall
reasonably object within a reasonable time period, and make
the representatives of the Company available for discussion of
such documents as shall be reasonably requested by the Initial
Purchaser; and
(ii) in the case of a Shelf
Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming
a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to
such Prospectus, provide copies of such document to
the Holders of Registrable Securities, to the Initial
Purchaser, to one firm of legal counsel for the
Holders and to the underwriter or underwriters of an
underwritten offering of
20
Registrable Securities, if any, make such changes in
any such document prior to the filing thereof as the
Initial Purchaser, the counsel to the Holders or the
underwriter or underwriters reasonably request and
not file any such document in a form to which the
Majority Holders, the Initial Purchaser on behalf of
the Holders of Registrable Securities, counsel for
the Holders of Registrable Securities or any
underwriter shall not have previously been advised
and furnished a copy of or to which the Majority
Holders, the Initial Purchaser on behalf of the
Holders of Registrable Securities, counsel to the
Holders of Registrable Securities or any underwriter
shall reasonably object, and make the representatives
of the Company available for discussion of such
document as shall be reasonably requested by the
Holders of Registrable Securities, the Initial
Purchaser on behalf of such Holders, counsel for the
Holders of Registrable Securities or any underwriter.
(r) otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC
and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering at
least 12 months which shall satisfy the provisions of Section
11(a) of the 1933 Act and Rule 158 thereunder;
(s) cooperate and assist in any filings required
to be made with the NASD and, in the case of a Shelf
Registration, in the performance of any due diligence
investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be
retained in accordance with the rules and regulations of the
NASD); and
In the case of a Shelf Registration Statement, the Company may
(as a condition to such Holder's participation in the Shelf Registration)
require each Holder of Registrable Securities to furnish to the Company such
information regarding the Holder and the proposed distribution by such Holder of
such Registrable Securities as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder
agrees that, upon receipt of any notice from the Company of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(v) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to a Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(k) hereof, and, if so directed by the Company, such Holder will
deliver to the Company (at its expense) all copies in such Holder's possession,
other than permanent file copies then in such Holder's possession, of the
21
Prospectus covering such Registrable Securities current at the time of receipt
of such notice.
In the event that the Company fails to effect the Exchange
Offer or file any Shelf Registration Statement and maintain the effectiveness of
any Shelf Registration Statement as provided herein, the Company shall not file
any Registration Statement with respect to the registration or offer to exchange
any senior debt securities (within the meaning of Section 2(1) of the 1933 Act)
of the Company (other than Registrable Securities) that are issued and sold
after the date hereof pursuant to Rule 144A under the 1993 Act.
If any of the Registrable Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Company and shall be acceptable to the Majority
Holders of Registrable Securities included in such offering. No Holder of
Registrable Securities may participate in any underwritten registration
hereunder unless such Holder (a) agrees to sell such Holder's Registrable
Securities on the basis provided in any underwriting arrangements approved by
the persons entitled hereunder to approve such arrangements and (b) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting
arrangements.
4. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold
harmless the Initial Purchaser, each Holder, each
Participating Broker-Dealer, each Person who participates as
an underwriter (any such Person being an "Underwriter") and
each Person, if any, who controls any Holder or Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act as follows:
(i) against any and all loss,
liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained
in any Registration Statement (or any amendment or
supplement thereto) pursuant to which Exchange
Securities or Registrable Securities were registered
under the 1933 Act, including all documents
incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or arising out
of any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (or
any amendment or supplement
22
thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to
make the statements therein, in the light of the
circumstances under which they were made, not
misleading;
(ii) against any and all loss,
liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or
any such alleged untrue statement or omission;
provided that (subject to Section 4(d) below) any
such settlement is effected with the written consent
of the Company; and
(iii) against any and all expense
whatsoever, as incurred (including the fees and
disbursements of one firm of legal counsel chosen by
each indemnified party), reasonably incurred in
investigating, preparing or defending against any
litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission (i) made in
reliance upon and in conformity with written information furnished to the
Company by the Holder or Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto) or (ii) if the Person asserting any such loss, liability,
claim, damage or expense was not sent or given a copy of the final Prospectus
(or any amendment or supplement thereto) (in each case exclusive of the
documents from which information is incorporated by reference) at or prior to
the sale of such Registrable Securities to such Person (other than as a result
of the failure by the Company to comply with its obligations under Section 3(c)
hereof) and the untrue statement contained in or omitted from such final
Prospectus was subsequently corrected in the final Prospectus (or any amendment
or supplement thereto).
(b) Each Holder severally, but not jointly,
agrees to indemnify and hold harmless the Company, the Initial
Purchaser, each Underwriter and the other selling Holders, and
each of their respective directors and officers, and each
Person, if any, who controls the Company, the Initial
Purchaser, any Underwriter or any other selling Holder within
the meaning
23
of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 4(a) hereof,
as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in
the Shelf Registration Statement (or any amendment thereto) or
any Prospectus included therein (or any amendment or
supplement thereto) in reliance upon and in conformity with
written information with respect to such Holder furnished to
the Company by such Holder expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims
hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities pursuant
to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party
of any action or proceeding commenced against it in respect of
which indemnity may be sought hereunder, but failure so to
notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent
it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the
defense of such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action
or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened,
or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or
not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party
from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
24
(d) If at any time an indemnified party shall
have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 4(a)(ii)
effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) If the indemnification provided for in this
Section 4 is for any reason unavailable to or insufficient to
hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate
amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, in
such proportion as is appropriate to reflect the relative
fault of the Company on the one hand and the Holders and the
Initial Purchaser on the other hand in connection with the
statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative fault of the Company on the one hand and the Holders and
the Initial Purchaser on the other hand shall be determined by reference to,
among other things, whether any such untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company, the Holders or the Initial Purchaser and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchaser agree that it would
not be just and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
Section 4. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
4 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
25
Notwithstanding the provisions of this Section 4, the Initial Purchaser
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Securities sold by it were offered exceeds the
amount of any damages which the Initial Purchaser 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 1933 Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company, and each Person,
if any, who controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company.
5. Miscellaneous.
5.1 Rule 144 and Rule 144A. For so long as the Company is
subject to the reporting requirements of Section 13 or 15 of the 1934 Act, the
Company covenants that it will file the reports required to be filed by it under
Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by
the SEC thereunder. If the Company ceases to be so required to file such
reports, the Company covenants that it will upon the request of any Holder of
Registrable Securities (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the 1933 Act, (b) deliver
such information to a prospective purchaser as is necessary to permit sales
pursuant to Rule 144A under the 1933 Act and it will take such further action as
any Holder of Registrable Securities may reasonably request, and (c) take such
further action that is reasonable in the circumstances, in each case, to the
extent required from time to time to enable such Holder to sell its Registrable
Securities without registration under the 1933 Act within the limitation of the
exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such Rule may
be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the SEC. Upon the request of any Holder of Registrable
Securities, the Company will deliver to such Holder a written statement as to
whether it has complied with such requirements.
5.2 No Inconsistent Agreements. The Company has not entered
into and the Company will not after the date of this Agreement enter into any
agreement which is inconsistent with the rights granted to the Holders of
Registrable Securities in this Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the
26
Holders hereunder do not and will not for the term of this Agreement in any way
conflict with the rights granted to the holders of the Company's other issued
and outstanding securities under any such agreements.
5.3 Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or departure.
5.4 Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (a) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the address set forth
in the Purchase Agreement with respect to the Initial Purchaser; and (b) if to
the Company, initially at the Company's address set forth in the Purchase
Agreement, and thereafter at such other address of which notice is given in
accordance with the provisions of this Section 5.4.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the person giving the same to the Trustee
under the Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement, including the restrictions on resale
set forth in this Agreement and, if
27
applicable, the Purchase Agreement, and such person shall be entitled to receive
the benefits hereof.
5.6 Third Party Beneficiaries. The Initial Purchaser
(even if the Initial Purchaser is not a Holder of Registrable Securities) shall
be a third party beneficiary to the agreements made hereunder between the
Company, on the one hand, and the Holders, on the other hand, and shall have the
right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Registrable Securities shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights hereunder.
5.7. Specific Enforcement. Without limiting the remedies
available to the Initial Purchaser and the Holders, the Company acknowledges
that any failure by the Company to comply with its obligations under Sections
2.1 through 2.4 hereof may result in material irreparable injury to the Initial
Purchaser or the Holders for which there is no adequate remedy at law, that it
would not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Company's obligations
under Sections 2.1 through 2.4 hereof.
5.8. Restriction on Resales. Until the expiration of two
years after the original issuance of the Securities, the Company will not, and
will cause its "affiliates" (as such term is defined in Rule 144(a)(1) under the
1933 Act) not to, resell any Securities which are "restricted securities" (as
such term is defined under Rule 144(a)(3) under the 1933 Act) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities submit such Securities to the Trustee for cancellation.
5.9 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.
5.10 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
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THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS
THEREOF.
5.12 Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
NATIONAL-OILWELL, INC.
By: ___________________________________
Name:
Title:
Confirmed and accepted as
of the date first above
written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: ____________________________
Name:
Title:
30