Exhibit 4(e)
================================================================================
Registration Rights Agreement
Dated As of December 7, 1998
among
Case Corporation
and
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
NationsBanc Montgomery Securities LLC
Salomon Smith Barney Inc.
================================================================================
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and entered
into this 7th day of December, 1998, among Case Corporation, a Delaware
corporation (the "Company"), and Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Chase Securities Inc., Credit Suisse First Boston Corporation,
NationsBanc Montgomery Securities LLC and Salomon Smith Barney Inc.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated December
2, 1998, among the Company and the Initial Purchasers (the "Purchase
Agreement"), which provides for, among other things, the sale by the Company to
the Initial Purchasers of an aggregate of $300 million aggregate principal
amount of the Company's 6.25% Notes due December 1, 2003 (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.
"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.
-2-
"Effectiveness Date" shall mean the date that the Exchange Offer
Registration Statement is declared effective under the 1933 Act.
"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.
"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, in each case 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 6.25% Notes due December 1, 2003
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 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 July 31, 1995, 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" or "Initial Purchasers" shall have the meaning set
forth in the preamble.
"Issue Date" shall mean the date on which the Securities are
originally issued under the Indenture.
-3-
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Outstanding (as defined in the Indenture)
Registrable Securities; provided, 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.
"Participating Broker-Dealer" shall mean Merrill Lynch, Pierce, Fenner
& Smith Incorporated, Chase Securities Inc., Credit Suisse First Boston
Corporation, NationsBanc Montgomery Securities LLC and Salomon Smith Barney
Inc. 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 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 Securities have been
exchanged for Exchange Securities upon consummation of the Exchange Offer
and are thereafter freely tradable by the holder thereof (except in the
case of Securities purchased from the Company and continued to be held by
the Initial Purchasers).
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement, including
without limita-
-4-
tion: (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 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, 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 disbursements of Cahill, Gordon &Reindel, special counsel representing
the Holders of Registrable Securities and (ix) any fees and disbursements
of the underwriters customarily required to be paid by issuers or sellers
of securities and the reasonable 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.
"Securities" shall have the meaning set forth in the preamble.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2.2 hereof.
-5-
"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, for the benefit of the Holders,
at the Company's cost, (A) prepare and, not later than 135 days following the
Closing Date, file with the SEC an Exchange Offer Registration Statement 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 efforts to cause
the Exchange Offer Registration Statement to be declared effective under the
1933 Act within 180 days of the Closing Date, (C) use its reasonable efforts to
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) use its reasonable efforts to cause the Exchange
Offer to be consummated not later than 45 days following the Effectiveness Date.
The Exchange Securities will be issued under the Indenture. Upon the
Effectiveness Date, the Company shall, within the agreed-upon time limits,
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 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;
-6-
(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 at the option of the Company or 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. (New York City 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 the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(f) otherwise comply in all 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.
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 Issue
Date. The Exchange Offer shall not be subject to any conditions, other than (i)
that the Exchange Offer, or the making of any ex-
-7-
change 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 made certain
customary representations, including representations that (a) such Holder is not
an affiliate of the Company within the meaning of Rule 405 under the 1933 Act,
(b) that such Holder is not a broker-dealer tendering Registrable Securities
acquired directly from the Company for its own account (unless it agrees to
deliver a prospectus meeting the requirements of the 1933 Act in connection with
any resale of Exchange Securities), (c) 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 (d) any
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 entity 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. To the extent permitted by law, 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. In the event that (i) any changes in law, SEC
rules or regulations or applicable interpretations thereof by the staff of the
SEC do not permit the Company 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 180 days following the original issue
of the Registrable Securities or the Exchange Offer is not consummated within 45
days after the Effectiveness Date (provided that if the Exchange Offer
Registration Statement shall be declared effective after such 180-day period or
if the Exchange Offer shall be consummated after such 45-day period, then the
Company's obligations under this clause (ii) arising from failure of the
Exchange Offer Registration Statement to be declared effective within such 180-
day period or failure of the Exchange Offer to be consummated within such 45-day
period, respectively, shall terminate), (iii) upon the request of any Initial
Purchaser made within 90 days after consummation of the Exchange Offer with
respect to any Registrable Securities which it acquired directly from the
Company and, with respect to other Registrable Securities held by it, if such
Initial Purchaser is not permitted, in the reasonable opinion of counsel with a
national securities law reputation to such Initial Purchaser, pursuant to
applicable law or applicable interpretations of the Staff of the SEC, to
participate in the Exchange Offer and thereby receive securities that are freely
tradeable without restriction under the 1933 Act and applicable blue sky or
state securities laws or (iv) if a Holder is not permit-
-8-
ted by applicable law to participate in the Exchange Offer based upon written
advice of counsel with a national securities law reputation to the effect that
such Holder may not be legally able to participate in the Exchange Offer or does
not receive Exchange Securities pursuant to the Exchange Offer which are fully
tradeable by the Holder without restriction under the 1933 Act and under
applicable blue sky or state securities laws, then in case of each of clauses
(i) through (iv) the Company shall, at its cost:
(a) No later than the later of (i) 180 days after the Issue Date and
(ii) 60 days after the obligation to file arises pursuant to this Section
2.2, file with the SEC, and thereafter shall use its reasonable efforts to
cause to be declared effective no later than 60 days after the date such
Shelf Registration Statement is filed, a 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.
(b) Subject to Section 2.4(b), use its reasonable 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 (or one year in the case of a request solely by an Initial Purchaser)
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 to be Registrable Securities.
(c) Notwithstanding any other provisions hereof, use its reasonable
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto, at the time each such registration statement or
amendment thereto becomes effective, and any Prospectus, as of the date
thereof, 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) (each as of the date thereof), 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, provided that clauses (ii) and (iii) in this
paragraph shall not apply to any information provided by the Initial
Purchasers or any Holder.
-9-
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.
The Company shall not be required to include any Registrable Securities of
a Holder in any Shelf Registration Statement pursuant to this Agreement unless
such Holder (i) fur-nishes to the Company, within 20 business days after receipt
by such Holder of a request therefor, such information as the Company may
reasonably request for use in connection with such Shelf Registration Statement
and (ii) agrees in writing to be bound by this Agreement, including the
indemnification provisions.
2.3. Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2 hereof. Except
as provided herein, each Holder shall pay all expenses of its counsel,
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 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
affirmative 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 (i) such action is required by applicable law
or (ii) such action or omission is taken or made by the Company in good faith
and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Company complies with the requirements of Section 3(k) hereof, if
applicable.
(b) The Company may suspend the availability of the Shelf
Registration Statement and the use of any Prospectus which is a part thereof and
shall not be required to amend or supplement such Shelf Registration Statement
(i) for one period not to exceed 60 days in any six month period or (ii) for up
to four periods not to exceed an aggregate of 90 days in any 12 month period, if
such suspension is effected in good faith and for valid business reasons (not
including avoidance of the Company's obligations hereunder), including the
acquisition or divestiture of assets, so long as the Company promptly complies
with the requirements of Section 3(k) hereof, if applicable.
-10-
(c) 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 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. The Company agrees that in the event that either (a) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 135th calendar day following the Issue Date, (b) the Exchange Offer
Registration Statement has not been declared effective on or prior to the 180th
calendar day following the Issue Date, (c) the Exchange Offer is not consummated
on or prior to the 45th calendar day following the Effectivness Date or (d) a
Shelf Registration Statement is not filed on or prior to the deadline for such
filing pursuant to Section 2.2(a) or is not declared effective on or prior to
the 60th calendar day following the date of filing of the Shelf Registration
Statement (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") immediately upon occurrence of a Registration
Default by one-quarter of one percent (0.25%) per annum with respect to the
first 90-day period while one or more Registration Defaults is continuing, which
rate will increase by one-quarter of one percent (0.25%) at the beginning of
each subsequent 90-day period while one or more Registration Default is
continuing, until all Registration Defaults have been cured, provided that the
maximum aggregate increase in the interest rate will in no event exceed one-half
of one percent (0.50%) per annum, and provided further that Additional Interest
shall accrue only for those days that a Registration Default occurs and is
continuing. Such Additional Interest shall be calculated based on a year
consisting of 360 days comprised of twelve 30-day months. Following the cure of
all Registration Defaults the accrual of Additional Interest will cease and the
interest rate will revert to the original rate. Additional Interest shall not
be payable with respect to the Registration Defaults described in clauses (a),
(b) and (c) above for any period during which a Shelf Registration Statement is
effective and usable by the Holders.
If the Shelf Registration Statement is unusable by the Holders for any
reason, then the interest rate borne by the Securities will be increased by one-
quarter of one percent (0.25%) per annum of the principal amount of the
Securities for the first 90-day period (or portion thereof) that such Shelf
Registration Statement ceases to be usable, which rate shall be increased by an
additional one-quarter of one percent (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
-11-
"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 in writing 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.
Notwithstanding anything else contained herein, no Additional Interest
shall be payable in relation to the applicable Shelf Registration Statement or
the related prospectus if (i) such Additional Interest is payable solely as a
result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited or, if required by the
rules and regulations under the 1933 Act, quarterly unaudited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) for a period not to exceed an aggregate of 45 days
in any calendar year, other material events or developments with respect to the
Company that would need to be described in such Shelf Registration Statement or
the related prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such Shelf
Registration Statement and related prospectus to describe such events; provided,
however, that in no event shall the Company be required to disclose the business
purpose for such suspension if the Company determines in good faith that such
business purpose must remain confidential. Notwithstanding the foregoing, the
Company shall not be required to pay Additional Interest with respect to the
Securities to Holder if the failure arises from the Company's failure to file,
or cause to become effective, a Shelf Registration Statement within the time
periods specified in this Section 2 by reason of the failure of such Holder to
provide such information as (i) the Company may reasonably request, with
reasonable prior written notice, for use in the Shelf Registration Statement or
any prospectus included therein to the extent the Company reasonably determines
that such information is required to be included therein by applicable law, (ii)
the NASD or the Commission may request in connection with such Shelf
Registration Statement or (iii) is required to comply with the agreements of
such Holder as contained
-12-
herein to the extent compliance thereof is necessary for the Shelf Registration
Statement to be declared effective.
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, at
the time of effectiveness, 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 material respects with the requirements of Regulation S-T under the
Securities Act, and use its best efforts to cause such Registration
Statement to become effective and remain effective in accordance with
Section 2 hereof;
(b) subject to the limitations contained in the fourth paragraph of
Section 2.5, 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 effect 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 described in this Agreement
(including sales by any Participating BrokerDealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Registrable Securities, at least five 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 re-
-13-
quest, 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) subject to the last
paragraph of this Section 3, 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 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 notice 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 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
-14-
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
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") on
behalf of 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 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 Merrill Lynch on behalf 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) subject to the last paragraph of this Section 3,
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, (iv) use their best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement
the Prospectus contained therein in order to permit such Prospectus to be
lawfully delivered by all Persons subject to the prospectus delivery
requirements of the 1933 Act for such period of time as such Persons must
comply with such requirements in order to resell the Exchange Securities
and (v) 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:
-15-
"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 deliver to the Initial Purchasers on behalf of the
Participating Broker-Dealers upon the effectiveness of the Exchange Offer
Registration Statement (i) an opinion of Mayer, Brown & Platt substantially
in the form attached hereto as Exhibit A and (ii) an officers' certificate
substantially in the form customarily delivered in a public offering of
debt securities;
(g) (i) in the case of an Exchange Offer, furnish counsel for the
Initial Purchasers and (ii) in the case of a Shelf Registration, furnish
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 at the
earliest possible moment;
(i) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities upon request, 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;
-16-
(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)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof, use its reasonable
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;
(l) obtain a CUSIP number for all Exchange Securities not later than
the effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Securities in a form eligible
for deposit with the Depositary;
(m) (i) if not already qualified, cause the Indenture to be qualified
under the Trust Indenture Act of 1939, as amended (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 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, enter into agreements
(including customary 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 (provided that such representations and warranties shall be
substantially similar to those contained in the Purchase Agreement);
(ii) obtain opinions of counsel to the Company and updates
thereof (which opinions (in form, scope and substance) and counsel
shall be reasonably satisfactory to the managing underwriters, if any,
and the Holders of a majority in
-17-
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 (provided that
such opinions shall be substantially similar to those described in the
Purchase Agreement);
(iii) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the
underwriters, if any, and use reasonable efforts to have such letters
addressed to the selling Holders of Registrable Securities (to the
extent consistent with Statement on Auditing Standards No. 72 of the
American Institute of Certified Public Accountants), 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 and such other matters as reasonably
requested by such selling Holders and any underwriters;
(iv) 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;
(o) in the case of a (i) Shelf Registration, or (ii) Prospectus
contained in an Exchange Offer pursuant to Section 2.1 which is required to
be delivered under the
-18-
1933 Act by a Participating Broker-Dealer who seeks to sell Exchange
Securities, make available (at the office where normally kept and during
normal business hours) for inspection by representatives of the Holders of
the Registrable Securities and any such Participating Broker-Dealer, as the
case may be, and any underwriters participating in any disposition pursuant
to a Shelf Registration Statement and any counsel or accountant retained by
such Holders, Participating Broker-Dealers or underwriters (collectively,
the "Inspectors"), all pertinent financial and other records, pertinent
corporate documents and properties of the Company (collectively, the
"Records") reasonably requested by any such persons, and use reasonable
efforts to have the respective officers, directors, employees, and any
other agents of the Company to supply all information reasonably requested
by any such representative, underwriter, counsel or accountant in
connection with a Registration Statement or Prospectus, and make such
representatives of the Company available for discussion of such documents
as shall be reasonably requested by the Initial Purchasers; provided, that
any such records, documents, properties and such information that is
designated in writing by the Company, in good faith, as confidential at the
time of delivery of such records, documents, properties or information
shall be kept confidential by any such representative, underwriter, counsel
or accountant and shall be used only in connection with such Registration
Statement or Prospectus, unless such information 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 except
that such representative, underwriter, counsel or accountant shall have no
liability, and shall not be in breach of this provision, if disclosure of
such confidential information is made in connection with a court proceeding
or required by law, and the Company shall be entitled to request that such
representative, underwriter, counsel or accountant sign a confidentiality
agreement to the foregoing effect. Each such Holder and each such
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed confidential
and shall not be used by it as the basis for any market transactions in the
securities of the Company unless and until such is made generally available
to the public through no fault or action of such Holder, such Participating
Broker-Dealer or any Inspector. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure of such Records
is necessarily under (i) or (ii) above, give notice to the Company and
allow the Company at its expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(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
-19-
the Initial Purchasers and make such changes in any such document prior to
the filing thereof as Merrill Lynch on behalf of the Initial Purchasers may
reasonably request, and make the representatives of the Company available
for discussion of such documents as shall be reasonably requested by the
Initial Purchasers; 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 Purchasers, to counsel on
behalf of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, make such changes
in any such document prior to the filing thereof as Merrill Lynch on behalf
of the Initial Purchasers, the counsel to the Holders or the underwriter or
underwriters reasonably request 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 Purchasers on behalf
of such Holders, or any underwriter;
(q) in the case of a Shelf Registration, use its reasonable efforts
to cause all Registrable Securities to be listed on any securities exchange
on which similar debt securities issued by the Company are then listed if
requested by the Majority Holders; or if requested by the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any;
(r) in the case of a Shelf Registration, use its reasonable efforts
to cause the Registrable Securities to be rerated by the appropriate rating
agencies, if so reasonably requested by the Majority Holders, or if
requested by the underwriter or underwriters of an underwritten offering of
Registrable Securities, if any;
(s) otherwise use its reasonable 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;
(t) 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
(u) 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
-20-
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.
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 Majority Holders of such Registrable Securities included in such
offering and shall be acceptable to the Company. 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.
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 Sections 3(e)(ii),
3(e)(iii), 3(e)(v) or 3(e)(vi) 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 Prospectus covering such Registrable Securities current at the time of
receipt of such notice. If the Company shall give any such notice to suspend
the disposition of Registrable Securities pursuant to a Shelf Registration
Statement as a result of the happening of any event or the discovery of any
facts, each of the kind described in Sections 3(e)(ii), 3(e)(iii), 3(e)(v) or
3(e)(vi) hereof, the Company shall be deemed to have used its reasonable efforts
to keep the Shelf Registration Statement effective during such period of
suspension provided that the Company shall use its reasonable efforts to file
and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Shelf Registration Statement and shall extend the
period during which the
-21-
Shelf 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 have
received copies of the supplemented or amended Prospectus necessary to resume
such dispositions.
4. Indemnification, Contribution.
(a) The Company agrees to indemnify and hold harmless the Initial
Purchasers, each Holder, each Participating Broker-Dealer, each Person who
participates as an underwriter (any such Person being an "Underwriter"), their
respective affiliates, and each Person, if any, who controls any of such parties
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
and each of their respective directors, officers, employees and agents, 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 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 counsel chosen by any indemnified party,
except to the extent otherwise expressly provided in Section 4(c) hereof),
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
-22-
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 made in reliance
upon and in conformity 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 thereto) or any Prospectus (or any
amendment or supplement thereto); provided, further, that such indemnity with
respect to any preliminary prospectus shall not inure to the benefit of any
Initial Purchaser, Holder or Underwriter (or any persons controlling such
Initial Purchaser, Holder or Underwriter) (i) from whom the person asserting
such loss, claim, damage or liability purchased the Securities which are the
subject thereof if such person did not receive a copy of the final Prospectus
(or the final Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Securities to such person in any case where the
Company complied with its obligations under Section 3(c) or 3(f)(A)(ii) hereof,
as applicable, and any such untrue statement or omission or alleged untrue
statement or omission of a material fact contained in such preliminary
prospectus (or any amendment or supplement thereto) was corrected in the final
Prospectus (or the final Prospectus as amended or supplemented) or (ii) if it
resulted from the use of the Prospectus during a period when the use of the
Prospectus has been suspended in accordance with Section 2.4(b) or Sections
3(e)(ii), 3(e)(iii), 3(e)(v) and 3(e)(vi) hereof; provided, in each case, that
Holders received prior notice of such suspension.
(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.
(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
-23-
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. Notwithstanding the
foregoing, if it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel chosen
by it and approved by the indemnified parties defendant in such action (which
approval shall not be unreasonably withheld), unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them which are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying party shall not be liable for any fees
and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. 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 (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 (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.
(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 an indemnifying party to reimburse the
indemnified party for fees and ex-
-24-
penses of counsel, an indemnifying party shall not be liable for any settlement
of the nature contemplated by Section 4(a)(ii) effected without its consent if
such indemnifying party (i) reimburses such indemnified party in accordance with
such request to the extent it reasonably considers such request to be reasonable
and (ii) provides written notice to the indemnified party substantiating the
unpaid balance as unreasonable, in each case 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, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand, the
Holders on another hand, and the Initial Purchasers on another hand, from the
offering of the Securities, the Exchange Securities and the Registrable
Securities (taken together) included in such offering or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand, the
Holders on another hand and the Initial Purchasers on another 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 benefits received by the Company from the offering of the
Securities, the Exchange Securities and the Registrable Securities (taken
together) included in such offering shall in each case be deemed to include the
proceeds received by the Company in connection with the offering of the
Securities pursuant to the Purchase Agreement. The parties hereto agree that
any underwriting discount or commission or reimbursement of fees paid to the
Initial Purchasers pursuant to the Purchase Agreement shall not be deemed to be
a benefit received by the Initial Purchasers in connection with the offering of
the Exchange Securities or Registrable Securities included in such offering.
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
-25-
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.
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, each officer of
the Company who signed the Registration Statement 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. So long as any of the Registrable Securities
are outstanding, the Company will file with the Commission, to the extent then
permitted by the Commission, the annual reports, quarterly reports and other
documents that the Company would have been required to file with the Commission
pursuant to Sections 13(a) and 15(d) of the Exchange Act if the Company was
subject to such Sections, and the Company will promptly provide to the Trustee
copies of such reports and documents; provided, however, that if the Company is
for any reason unable to make such filings it will make available, upon request,
to any Holder of Registrable Securities or prospective purchaser of Registrable
Securities the information specified in Rule 144A(d)(4) of the Securities Act.
-26-
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 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.
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; 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 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. 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 con-
-27-
clusively 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. Other than the
foregoing sentences, nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Initial Purchasers, the Holders, including Participating Broker-
Dealers, each underwriter who participates in an offering of Registrable
Securities, their respective affiliates, and the Company and their respective
successors and the controlling persons, directors, officers, employees, and
agents referred to in Section 4 and their heirs and legal representatives, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole benefit of the Initial
Purchasers, the Holders and the Company and the other persons referenced by the
preceding sentences and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation.
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 LAWS 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 circumstance, is held
invalid, illegal or unenforceable,
-28-
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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CASE CORPORATION
By: /s/ Peter Hong
----------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Parker A. Weil
-------------------------------------
Name: Parker A. Weil
Title: Vice President
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
CASE CORPORATION
By:
--------------------------------
Name:
Title:
Confirmed and accepted as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
NATIONSBANC MONTGOMERY SECURITIES LLC
SALOMON SMITH BARNEY INC.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: /s/ Parker A. Weil
------------------------------------
Name: Parker A. Weil
Title: Vice President
Exhibit A
Form of Opinion of Counsel
--------------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chase Securities Inc.
Credit Suisse First Boston Corporation
NationsBanc Montgomery Securities LLC
Salomon Smith Barney Inc.
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
RE: Case Corporation 6.25% Notes due December 1, 2003
Ladies and Gentlemen:
We have acted as special counsel for Case Corporation, a Delaware
corporation (the "Company"), in connection with the sale by the Company to the
Initial Purchasers (as defined below) of $4,000,000 aggregate principal amount
of 6.25% Notes due December 1, 2003 (the "Notes") of the Company pursuant to the
Purchase Agreement dated December 2, 1998 (the "Purchase Agreement") among the
Company and Merrill Lynch, Pierce, Fenner & Smith Incorporated and Chase
Securities Inc., Credit Suisse First Boston Corporation, NationsBanc Montgomery
Securities LLC and Salomon Smith Barney Inc. (collectively, the "Initial
Purchasers") and the filing by the Company of an Exchange Offer Registration
Statement on Form S-4 (File No. 333-____) filed with the Securities and Exchange
Commission (the "Commission") on _________, 199_ (such Registration Statement,
excluding the Statement of Eligibility on Form T-1 of the Trustee, is
hereinafter referred to as the "Registration Statement") in connection with an
Exchange Offer to be effected pursuant to the Registration Rights Agreement (the
"Registration Rights Agreement"), dated December 7 1998 between 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.
-2-
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 assumed the completeness
and accuracy of, and are relying solely upon, the representations, warranties
and agreements of the Company and the Initial Purchasers 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, agreements or statements. We have also
participated on behalf of the Company in the preparation of the Registration
Statement, the final Prospectus relating thereto (including [any amendment or
supplement thereto and] all documents incorporated therein by reference) dated
_________, 199_ filed with the Commission on _________, 199_ pursuant to Rule
424 under the Securities Act of 1933, as amended (the "Act") (such Prospectus
referred to herein as the "Prospectus").
Based upon the foregoing, we are of the opinion that the Registration
Statement (except for the financial statements and related schedules or other
financial or [statistical] data included or incorporated by reference therein,
as to which we are not called upon to express a belief), as of its effective
date, and the Prospectus (except for the financial statements and related
schedules or other financial or statistical data included or incorporated by
reference therein, as to which we are not called upon to express a belief), as
of the date hereof, complied as to form in all material respects with the
requirements of the Act and any applicable rules and regulations of the
Commission promulgated under the Act.
As indicated above, we have examined various documents and participated in
conferences with representatives of the Company, its counsel and its accountants
and with representatives of the Initial Purchasers, at which times the contents
of the Registration Statement, the Prospectus and related matters were
discussed. However, except as specifically noted above, we do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus. Subject to the
foregoing, we advise you that no facts have come to our attention that cause us
to believe that the Registration Statement (except for the financial statements
and related schedules or other financial or statistical data included or
incorporated by reference therein, as to which we are not called upon to express
a belief), as of its effective date, contained any untrue statement of a
material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus (except for the financial statements and related schedules or other
financial or statistical data included or incorporated by reference therein, as
to which we are not called upon to express a belief), as of the date hereof,
contains any untrue statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
-3-
Our opinions expressed herein are limited to the federal laws of the United
States.
This opinion is furnished by us pursuant to Section 3(f)(B) of the
Registration Rights Agreement and is solely for your benefit. This opinion is
not to be used, circulated, quoted or otherwise referred to for any purpose
without our specific prior written approval.
Very truly yours,
MAYER, BROWN & PLATT