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EXHIBIT 4.2
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF JUNE 26, 1998
AMONG
NATIONAL-OILWELL, INC.
AS
ISSUER,
AND
MERRILL LYNCH & CO.
CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
AS
INITIAL PURCHASERS
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made
and entered into this 26th day of June, 1998, among NATIONAL-OILWELL, INC., a
Delaware corporation (the "Company"), and MERRILL LYNCH & CO., MERRILL LYNCH,
PIERCE, FENNER & SMITH INCORPORATED ("Merrill"), CHASE SECURITIES INC. and
MORGAN STANLEY & CO. INCORPORATED (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated June 26, 1998, among the Company and the Initial Purchasers (the
"Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $150,000,000 principal amount of the
Company's 6 7/8% Senior Notes due 2005 (the "Securities"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide to the Initial Purchasers and their direct and indirect
transferees the registration rights set forth in this Agreement. The execution
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 1934, 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 and, unless the context
otherwise requires, its subsidiaries.
"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.
"Exchange Offer Registration" shall mean a registration under
the 1933 Act effected pursuant to Section 2.1 hereof.
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"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 6 7/8% Senior Notes due
2005, 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 an 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.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of June 26, 1998, between the Company, as issuer,
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" or "Initial Purchasers" shall have the
meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of the then- outstanding 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 or any
subsidiary of the Company shall be disregarded in determining whether
such consent or approval was given by the Holders of such required
percentage amount.
"Participating Broker-Dealer" shall mean any of Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase
Securities Inc. and Morgan Stanley & Co. 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
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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 144
(or any similar provision then in force, but not Rule 144A) 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 an
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, (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 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
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 or the Exchange Securities,
as the case may be, 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 disbursements of one firm of legal
counsel selected by the Majority Holders to represent the Holders of
Registrable Securities in connection with a Shelf Registration and
(ix) any 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
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Statement, including post-effective amendments, in each case including
the Prospectus contained therein, all exhibits thereto and all
material incorporated or deemed to be incorporated by reference
therein.
"Securities" shall have the meaning set forth in the preamble.
"SEC" shall mean the Securities and Exchange Commission or any
successor agency or governmental 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-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
(A) prepare and, as soon as practicable but not later than 90 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
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1933 Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
In connection with the Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(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 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 Standard 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 his 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
certain rights retained by the Initial Purchasers 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,
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 all Registrable
Securities so accepted for exchange to the Trustee for cancellation;
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.
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Interest on each Exchange Security will accrue from the day
after 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, (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, (v) that
there shall not have been adopted or enacted any law, statute, rule or
regulation, (vi) that there shall not have been declared by United States
federal or New York state authorities a banking moratorium, (vii) that trading
on the New York Stock Exchange or generally in the United States
over-the-counter market shall not have been suspended by order of the SEC or
any other governmental authority and (viii) such other conditions as may be
reasonably acceptable to Merrill Lynch, in each of clauses (iv) through (viii),
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 Purchasers of the names and addresses of the Holders to whom
the Exchange Offer is made, and the Initial Purchasers shall have the right to
contact such Holders and otherwise facilitate the tender of Registrable
Securities in the Exchange Offer.
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) if a Holder is advised by counsel that it
is not permitted by Federal securities laws or SEC policy to participate in the
Exchange Offer or does not receive Exchange Securities that are fully tradeable
pursuant to the Exchange Offer without restriction or limitation as to holding
period or volume or (iv) upon the request of the Initial Purchasers acquiring a
majority of the initial aggregate principal amount of the Registrable
Securities (but only with respect to any Registrable Securities which the
Initial Purchasers acquired directly from the Company)then in case of each of
clauses (i) through (iv) the Company shall, at their 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 Shelf Registration Statement relating
to the offer
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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.
(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 Closing Date, or for such shorter period that
will terminate when all Registrable Securities covered by the Shelf
Registration Statement (i) have been sold pursuant thereto, (ii) cease
to be outstanding or (iii) become freely tradeable without restriction
or limitation as to holding period or volume; provided, however, that
the Company shall not be obligated to keep the Shelf Registration
Statement effective if (A) any event occurs or facts are discovered
which make any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which require the
making of any changes in such 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 the 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 further, that the
failure to keep the Shelf Registration Statement effective and usable
for offers and sales of Registrable Securities for such reasons shall
last no longer than 45 days in any 12-month period (whereafter a
Registration Default, as hereinafter defined, shall occur), and (B)
the Company thereafter complies as promptly as reasonably 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 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 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 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
relevant period referred to above during which it is required to keep
affective the Shelf Registration Statement (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 the 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.
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(c) Notwithstanding any other provisions hereof, use
their 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 statements, in light of the
circumstances under which they were made, not misleading.
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 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 remained
effective during the period of such interference, until the offering of
Registrable Securities pursuant to such Registration Statement may legally
resume.
2.5 Interest. The Indenture executed in connection
with the Securities will provide that in the event that either (a) the Exchange
Offer Registration Statement is not filed with
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The Commission on or prior to the 90th calendar day following the Closing Date,
(b) the Exchange Offer Registration Statement has not been 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, (d) a required Shelf Registration Statement is not
declared effective on or prior to the 210th calendar day following the Closing
Date or (e) the Exchange Offer Registration Statement or Shelf Registration
Statement is filed and declared effective but shall thereafter be withdrawn by
the Company or becomes subject to an effective stop order suspending the
effectiveness of such registration statement, except as specifically permitted
by Section 2.2(b) hereof, without being succeeded immediately by an additional
registration statement filed and declared effective (each such event referred
to in clauses (a) through (e) above, a "Registration Default"), the interest
rate borne by the Securities shall be increased by one- quarter of one percent
(0.25%) per annum following such Registration Default, with an aggregate
maximum increase in the interest rate equal to one-quarter of one percent
(0.25%) per annum; provided, however, that if the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th calendar day
following the Closing Date and the Company shall request holders of Securities
to provide information for inclusion in the Shelf Registration Statement, then
Securities owned by Holders who do not deliver such information to the Company
or who do not provide comments on the Shelf Registration Statement when
requested by the Company will not be entitled to any such increase in the
interest rate for any day after the 180th day following the Closing Date.
Following the cure of all Registration Defaults, the accrual of such additional
interest will cease and the interest rate will revert to the original rate.
2.6 Specific Enforcement. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company acknowledges
that any failure by the Company to comply with their obligations under Sections
2.1 and 2.2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holder may, to
the extent permitted by law, obtain such relief as may be required to
specifically enforce the Company's obligations under Section 2.1 and Section
2.2 hereof.
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
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requirements of Regulation S-T under the 1933 Act, and use their
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 under the 1933 Act and
comply with the provisions of the 1933 Act applicable to them with
respect to the disposition of all securities covered by each
Registration Statement during the applicable period to the extent
allowed by law and reasonably practicable to the Company with the
intended method or methods of distribution by the selling Holders
thereof;
(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 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 the
managing 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;
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(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 such sale cease to be true and correct in all material
respects, (v) of the happening of any event or the discovery of any
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 and (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;
(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 Purchasers, 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 l3d-3 under the Exchange Act) of Exchange
Securities to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by
the staff of the SEC or such positions or policies, in the reasonable
judgment of the Initial Purchasers 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
consents to the use of the Prospectus forming part of the
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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 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) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use its
reasonable best efforts to cause to be delivered at the request of an
entity representing the Participating Broker-Dealers (which entity
shall be Merrill Lynch or another Initial Purchaser) (A) a "cold
comfort" letter addressed to the Participating Broker-Dealers from the
Company's independent certified public accountants with respect to the
Prospectus in the Exchange Offer Registration Statement in the form
existing on the last date for which exchanges are accepted pursuant to
the Exchange Offer and (B) an opinion of counsel to the Company
addressed to the Participating Broker-Dealers in substantially the
form attached hereto as Exhibit A relating to the Exchange Securities;
and
(g) (i) in the case of an Exchange Offer, furnish to one
firm of legal counsel for the Initial Purchasers 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 and provide prompt notice to one firm of legal
counsel for the Holders of the withdrawal of any such order;
(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
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Registration Statement and any post-effective amendment thereto,
including financial statements and schedules (without documents
incorporated therein by reference or any 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 Company
becoming aware of the occurrence of any event or the discovery of any
facts, each as contemplated by Section 3(e)(v) hereof, use their
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;
(l) 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 a certificate or certificates for the Exchange Securities or the
Registrable Securities, as the case may be, in a form eligible for
deposit with the Depositary and consistent with the procedures to be
used by the Depositary;
(m) unless the Indenture, as it relates to the Exchange
Securities or the Registrable Securities, as the case may be, has
already been so qualified, use its reasonable best efforts to (i)
cause the Indenture to be qualified under the Trust Indenture Act of
1939 (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;
(n) in the case of a Shelf Registration, take all
customary and appropriate actions reasonably required (including those
reasonably requested by the Majority Holders) in order to expedite or
facilitate the disposition of the Registrable Securities registered
thereby. If requested as set forth below, the Company agrees that it
will in good faith negotiate the terms
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of an underwriting agreement, which shall be in form and scope as is
customary for similar offerings of debt securities with similar credit
ratings (including, without limitation, representations and warranties
to the underwriters) and shall otherwise be reasonably satisfactory to
the Company and the managing underwriters; and:
(i) if requested by the managing underwriters,
obtain opinions of counsel to the Company (which counsel shall be
reasonably satisfactory to the managing underwriters) addressed to
such underwriters, covering the matters customarily covered in
opinions requested in underwritten sales of securities in the form
agreed upon by such counsel and counsel to the managing underwriters;
(ii) if requested by the managing underwriters,
obtain a "cold comfort" letter and an update thereto not later than
two weeks after the date of the original letter (or if not available
under applicable accounting pronouncements or standards, a single
"procedures" letter and a single update thereto) from the Company's
independent certified public accountants addressed to the underwriters
named in the underwriting agreement and use its reasonable best
efforts to have such letter addressed to the selling Holders of
Registrable Securities (provided, however, that such letter need not
be addressed to any Holders to whom, in the reasonable opinion of the
Company's independent certified public accountants, addressing such
letter is not permissible under applicable accounting standards), such
letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" (or "procedures") letters to
underwriters in connection with similar underwritten offerings; and
(iii) deliver such documents and certificates as
may be reasonably requested and as are customarily delivered in
similar underwritten offerings.
Notwithstanding anything herein to the contrary, the
Company shall have no obligation to enter into any underwriting
agreement or permit an underwritten offering of Registrable Securities
unless a request therefor shall have been received from the Majority
Holders within ten business days of the date of the notice from the
Company as required by Section 3(c). In the case of such a request
for an underwritten offering, the Company shall provide reasonable
advance written notice to the Holders of all Registrable Securities of
such proposed underwritten offering. Such notice shall (A) offer each
such Holder the right to participate in such underwritten offering
(but may indicate that whether or not all Registrable Securities are
included will be at the discretion of the underwriters), (B) specify a
date, which shall be no earlier than ten business days following the
date of such notice, by which such Holder must inform the Company of
its intent to participate in such underwritten offering and (C)
include the instructions such Holder must follow in order to
participate in such underwritten offering;
(o) in the case of a Shelf Registration, and to
the extent customary in connection with a "due diligence"
investigation for an offering of debt securities with a similar credit
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rating to that of the Registrable Securities, make available
for inspection by representatives appointed by the Majority
Holders and any underwriters participating in any disposition
pursuant to a Shelf Registration Statement and one firm of
legal counsel retained for all Holders participating in such
Shelf Registration, and one firm of legal counsel to the
underwriters, if any, 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 or counsel
in connection 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
Purchasers; provided, however, that, if any such records,
documents or other information relates to pending or proposed
acquisitions or dispositions, or otherwise relates to matters
reasonably considered by the Company to constitute sensitive
or proprietary information, the Company need not provide such
records, documents or information unless the foregoing parties
enter into a confidentiality agreement in customary form and
reasonably acceptable to such parties and the Company;
(p) (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 Merrill Lynch
and make such changes in any such document prior to the filing
thereof as Merrill Lynch may reasonably request and, except as
otherwise required by applicable law, not file any such
document in a form to which Merrill Lynch on behalf of the
Holders of Registrable Securities shall reasonably object, and
make the representatives of the Company available for
discussion of such documents as shall be reasonably requested
by Merrill Lynch; 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 Merrill Lynch, one firm of legal counsel appointed by the
Majority Holders to represent the Holders participating in
such Shelf Registration, the managing underwriters of an
underwritten offering of Registrable Securities, if any, and
make such changes in any such document prior to the filing
thereof as Merrill Lynch, such one firm of legal counsel for
the Holders, such managing underwriters or their counsel may
reasonably request and not file any such document in a form to
which Merrill Lynch, such one firm of legal counsel for the
Holders, such managing underwriters or their counsel may
reasonably object and make the representatives of the Company
available for discussion of such document as shall be
reasonably requested by Merrill Lynch, such one firm of legal
counsel for the Holders, such managing underwriters or their
counsel.
(q) in the case of a Shelf Registration, use its
reasonable best efforts to cause the Registrable Securities to
be rated by the appropriate rating agencies, if so requested
by the
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Majority Holders, or if requested by the Majority Holders, or
by the managing underwriters of an underwritten offering of
Registrable Securities, if any, unless the Exchange Securities
or the Registrable Securities, as the case may be, are already
so rated or unless the Company has obtained such ratings for
its long-term debt securities generally;
(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 managing 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
(t) upon consummation of an Exchange Offer,
obtain a customary opinion of counsel to the Company addressed
to the Trustee for the benefit of all Holders of Registrable
Securities participating in the Exchange Offer, and which
includes an opinion that (i) the Company has duly authorized,
executed and delivered the Exchange Securities and the related
indenture, and (ii) each of the Exchange Securities and
related indenture constitute a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its respective terms (with customary
exceptions).
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 and in the case of the Exchange Offer Registration Statement,
each Participating Broker-Dealer agrees that, (i) 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 or
(ii) 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 usability of the 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, such Holder or
Participating Broker-Dealer, as the case may be, will forthwith
discontinue disposition of Registrable Securities pursuant to such
Registration Statement until the receipt by such Holder or
Participating Broker-Dealer, as the case may be, of (A) in the case of
clause (i) above, the copies of the supplemented or amended Prospectus
contemplated by Section 3(k) hereof, and, if so directed by
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the Company, such Holder will deliver to the Company (at its expense)
all copies in its possession of the Prospectus covering such
Registrable Securities current at the time of receipt of such notice,
or (B) in the case of clause (ii) above, notice in writing from the
Company that such Holder may resume disposition of Registrable
Securities pursuant to such Registration Statement. If the Company
shall give any such notice described in clause (i) above to suspend
the disposition of Registrable Securities pursuant to a Registration
Statement as a result of the happening of any event or the discovery
of any facts, each of the kind described in Section 3(e)(v) hereof,
the Company shall be deemed to have used its best efforts to keep
such Registration Statement effective during such period of suspension
provided that the Company shall use its reasonable best efforts to
file and have declared effective (if an amendment) as soon as
practicable an amendment or supplement to such Registration Statement
and shall extend the period during which such Registration Statement
shall be maintained effective pursuant to this Agreement by the number
of days during the period from and including the date of the giving of
such notice to and including the date when the Holders shall be
entitled to resume such dispositions pursuant to this paragraph.
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. No Holder of Registrable Securities may
participate in any underwritten offering 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 shall indemnify and hold harmless the
Initial Purchasers, each Holder, (in its capacity as a
participant in any Exchange Offer or Shelf Registration
transaction), 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 thereto) or the omission or alleged omission
therefrom of a material fact necessary in order
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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) subject to Section 4(c) below, against any and all
expense whatsoever, as incurred (including the fees and disbursements
of counsel chosen by Merrill Lynch, or in the event that Merrill Lynch
is not an indemnified party, by a majority of the indemnified
parties), 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 the indemnity agreement in this subsection 4(a) shall
not apply to any loss, liability, claim, damage or expense to the extent
arising out of any untrue statement or omission made in reliance upon and in
corconformity with written information furnished to the Company by the Initial
Purchasers, such Holder or underwriter expressly for use in a Registration
Statement (or any amendment the thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) Each Holder severally, but not jointly, agrees to
indemnify and hold harmless the Company, the Initial Purchasers, 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 Purchasers, any Underwriter or any
other selling Holder within the meaning 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
furnished to the Company 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.
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(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any
event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In case any
such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that
it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to
such indemnified party; provided, however, that if the defendants in
any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be one or more legal defenses available to it
and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of
such action on behalf of such indemnified party or parties and such
indemnified party or parties shall have the right to select separate
counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by
such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under
this Section 4 for any legal or other expenses, subsequently incurred
by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it
being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than
one separate counsel (in addition to local counsel) in any one action
or separate but substantially similar actions in the same jurisdiction
arising out of the same general allegations or circumstances,
designated by the Representatives in the case of paragraph (a) of this
Section 4, representing the indemnified parties under such paragraph
(a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel reasonably
satisfactory to the indemnified party or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party. After such notice from the
indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of
such action effected by such indemnified party without the consent of
the indemnifying party. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), 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
hereof (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,
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investigation, proceeding or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
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. Notwithstanding the immediately preceding sentence, if at
any time an indemnified party shall have requested in good faith an
indemnifying party to reimburse the indemnified party for specified
fees and expenses of counsel (the "Requested Expenses"), an
indemnifying party shall not be liable for any settlement of the
nature contemplated by Section 4(a)(ii) that is effected without its
consent (after satisfaction of each of the conditions set forth in the
immediately preceding sentence) if, prior to the date of such
settlement, such indemnifying party determines in good faith that the
Requested Expenses are not reasonable, reimburses such indemnified
party in accordance with such request for the portion of the Requested
Expenses it considers to be reasonable and provides written notice to
the indemnified party substantiating the fact that the unpaid balance
of the Requested Expenses is unreasonable.
(e) If the indemnification provided for in this Section 4
is applicable by its terms but 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, the Holders on another hand and the Initial Purchasers on
another hand with respect to 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, the Holders
on another hand, and the Initial Purchasers on another 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 Purchasers 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 Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 4
were determined by pro rata allocation (even if the Initial Purchasers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above
in this
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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.
Notwithstanding the provisions of this Section 4, no Initial
Purchaser shall 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 such 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. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 4 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A to the Purchase Agreement and not joint.
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 they will file the reports required to be
filed by it under the 1933 Act and 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
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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 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 Holders hereunder do not 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. Notwithstanding anything in this Agreement to
the contrary, this Agreement may be amended, modified or supplemented, and
waivers and consents to departures from the provisions hereof may be given, by
written agreement signed by the Company and Merrill Lynch to the extent that
any such amendment, modification, supplement, waiver or consent is, in their
reasonable judgment, necessary or appropriate to comply with applicable law
(including any interpretation of the staff of the SEC) or any change therein.
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 Purchasers 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; four
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
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limitation and without the need for an express assignment, subsequent Holders;
provided that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Registrable Securities in violation of the terms of the
Purchase Agreement and provided, further, that Holders of Registrable
Securities may not assign their rights under this Agreement except in
connection with the permitted transfer of Registrable Securities and then only
insofar as relates to such Registrable Securities. 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 applicable, the Purchase Agreement, and such person shall be entitled
to receive the benefits hereof.
5.6 Third Party Beneficiaries. The Initial
Purchasers (even if the Initial Purchasers are not Holders of Registrable
Securities) shall be third party beneficiaries 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 Purchasers, 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 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.
5.8 Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
5.9 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.10 Severability. In the event that any one or
more of the provisions contained herein, or the application thereof in any
circumstances, 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: /s/ Steven W. Krablin
------------------------------
Name: Steven W. Krablin
Title: Vice President
Confirmed and accepted as
of the date first above
written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
MORGAN STANLEY & CO. INCORPORATED
BY: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/ Rosser C. Newton
--------------------------------------
Rosser C. Newton,
Vice President
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Exhibit A
FORM OF OPINION OF COUNSEL
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chase Securities Inc.
Morgan Stanley & Co. Incorporated
and any other Participating Broker-Dealers
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
We have acted as counsel for National-Oilwell, Inc., a Delaware
corporation (the "Company"), in connection with the sale by the Company to the
Initial Purchasers (as defined below) of $150,000,000 aggregate principal
amount of 6 7/8 % Senior Notes due 2005 (the "Securities") of the Company
pursuant to the Purchase Agreement dated June 23, 1998 (the "Purchase
Agreement") among the Company, and Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated, Chase Securities Inc. and Morgan Stanley & Co.
Incorporated (collectively, the "Initial Purchasers") and the filing by the
Company of an Exchange Offer Registration Statement (the "Registration
Statement") in connection with an Exchange Offer to be effected pursuant to the
Registration Rights Agreement (the "Registration Rights Agreement"), dated
June 26, 1998, among the Company, and the Initial Purchasers. This opinion is
furnished to you pursuant to Section 3(f)(B) of the Registration Rights
Agreement. Unless otherwise defined herein, capitalized terms used in this
opinion that are defined in the Registration Rights Agreement are used herein
as so defined.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion. In rendering this opinion, as
to all matters of fact relevant to this opinion, we have relied upon the
representations and warranties of the Company set forth in the Purchase
Agreement and the statements set forth in certificates of public officials and
officers of the Company, without making any independent investigation or
inquiry with respect to the completeness or accuracy of such representations,
warranties or statements.
Based on and subject to the foregoing, we are of the opinion that the
Exchange Offer Registration Statement and the Prospectus (other than the
financial statements, notes or schedules thereto and other financial data and
supplemental schedules included or incorporated by reference
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therein or omitted therefrom, any reserve data included therein and the Form
T-1, as to which such counsel need express no opinion), comply as to form in
all material respects with the requirements of the 1933 Act and the applicable
rules and regulations promulgated under the 1933 Act.
In addition to the foregoing opinion, we have participated in the
preparation of the Exchange Offer Registration Statement and Prospectus
included therein and, although we are not passing upon, and do not assume
responsibility for the accuracy, completeness or fairness of, any portion of
the Exchange Offer Registration Statement and such Prospectus (relied to a
large extent as to factual matters upon certificates of officers and directors
of the Company), nothing has come to our attention that causes us to believe
that, at the date it became effective, the Exchange Offer Registration
Statement (other than the financial statements and schedules and the notes
thereto and other financial data included therein, the reserve data included
therein and the Form T-1, as to which we make no statement) contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that such Prospectus (other than the financial statements and schedules and the
notes thereto and other financial data included therein, as to which we make no
statement) as of the date hereof includes an untrue statement of a material
fact or omits to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
The foregoing opinion and comment are is limited in all respects to
federal laws of the United States, the Delaware General Corporation Law and New
York law. The foregoing opinion and comment are rendered only with respect to
laws, rules, and regulations which are presently in effect and applicable court
rulings and orders which have been published and are generally available and
which are normally applicable to transactions such as the exchange of the
Registrable Securities for the Exchange Securities as described in the Exchange
Offer Registration Statement. The foregoing opinion and comment are given as
of the date hereof, and we undertake no duty to advise you as to any changes of
law or fact which come to our attention after the date hereof. This letter is
strictly limited to the opinions expressly set forth herein and is not to be
read as applying by implication or otherwise to any other matter in connection
with the Purchase Agreement or the Registration Rights Agreement other than the
sale by Participating Broker- Dealers of the Securities as described in the
Registration Rights Agreement.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Registration Rights
Agreement, and may not be used for any other purpose or relied upon by any
person other than you. Except with our prior written consent, the opinions
herein expressed are not to be used, circulated, quoted or otherwise referred
to in connection with any transactions other than those contemplated by the
Registration Rights Agreement by or to any other person.
Very truly yours,
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