EXHIBIT 4.3
EXECUTION COPY
SEAGATE TECHNOLOGY INTERNATIONAL
$210,000,000
12.5% SENIOR SUBORDINATED NOTES DUE 2007
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
November 22, 2000
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
c/o Chase Securities Inc.
270 Park Avenue, 4th floor
New York, New York 10017
Ladies and Gentlemen:
Seagate Technology International, an exempted limited
liability company incorporated under the laws of the Cayman Islands (the
"Issuer"), proposes to issue and sell to Chase Securities Inc. ("CSI"), Goldman,
Sachs & Co. ("Goldman") and Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill", and together with Goldman and CSI, the "Initial Purchasers"), upon
the terms and subject to the conditions set forth in a purchase agreement dated
November 17, 2000 (the "Purchase Agreement"), $210,000,000 aggregate principal
amount of its 12.5% Senior Subordinated Notes due 2007 (the "Securities") to be
jointly and severally guaranteed on an unsecured senior subordinated basis by
each entity listed on Schedule I hereto (such entities collectively, the "Note
Guarantors"). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Purchase Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Issuer and the Note Guarantors agree with the
Initial Purchasers, for the benefit of the holders (including the Initial
Purchasers) of the Securities, the Exchange Securities (as defined herein) and
the Private Exchange Securities (as defined herein) (collectively, the
"Holders"), as follows:
1. Registered Exchange Offer. The Issuer and the Note
Guarantors shall (i) prepare and, not later than 150 days following the date of
original issuance of the
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Securities (the "Issue Date"), file with the Commission a registration statement
(the "Exchange Offer Registration Statement") on an appropriate form under the
Securities Act with respect to a proposed offer to the Holders of the Securities
(the "Registered Exchange Offer") to issue and deliver to such Holders, in
exchange for the Securities, a like aggregate principal amount of debt
securities of the Issuer (the "Exchange Securities") that are identical in all
material respects to the Securities, except for the transfer restrictions
relating to the Securities, (ii) use their reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act no later than 270 days after the Issue Date and the Registered Exchange
Offer to be consummated no later than 300 days after the Issue Date and (iii)
keep the Exchange Offer Registration Statement effective for not less than 20
business days (or longer, if required by applicable law) after the date on which
notice of the Registered Exchange Offer is mailed to the Holders (such period
being called the "Exchange Offer Registration Period"). The Exchange Securities
will be issued under the Indenture or an indenture (the "Exchange Securities
Indenture") between the Issuer, the Note Guarantors and the Trustee or such
other bank or trust company that is reasonably satisfactory to the Initial
Purchasers, as trustee (the "Exchange Securities Trustee"), such indenture to be
identical in all material respects to the Indenture, except for the transfer
restrictions relating to the Securities (as described above).
Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuer shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder (a) is not an affiliate (as defined in Rule 405 of the Securities Act) of
the Issuer or an Exchanging Dealer (as defined herein) not complying with the
requirements of the next sentence, (b) is not an Initial Purchaser holding
Securities that have, or that are reasonably likely to have, the status of an
unsold allotment in an initial distribution, (c) acquires 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
distribution of the Exchange Securities) and to trade such Exchange Securities
from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of
the several states of the United States. The Issuer, the Note Guarantors, the
Initial Purchasers and each Exchanging Dealer acknowledge that, pursuant to
current interpretations by the Commission's staff of Section 5 of the Securities
Act, each Holder that is a broker-dealer electing to exchange Securities,
acquired for its own account as a result of market-making activities or other
trading activities, for Exchange Securities (an "Exchanging Dealer"), is
required to deliver a prospectus containing substantially the information set
forth in Annex A hereto on the cover, in Annex B hereto in the "Exchange Offer
Procedures" section and the "Purpose of the Exchange Offer" section and in Annex
C hereto in the "Plan of Distribution" section of such prospectus in connection
with a sale of any such Exchange Securities received by such Exchanging Dealer
pursuant to the Registered Exchange Offer.
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If, prior to the consummation of the Registered Exchange
Offer, any Holder holds any Securities acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, or any Holder is not entitled to participate in the
Registered Exchange Offer, the Issuer shall, upon the request of any such
Holder, simultaneously with the delivery of the Exchange Securities in the
Registered Exchange Offer, issue and deliver to any such Holder, in exchange for
the Securities held by such Holder (the "Private Exchange"), a like aggregate
principal amount of debt securities of the Issuer (the "Private Exchange
Securities") that are identical in all material respects to the Exchange
Securities, except for the transfer restrictions relating to such Private
Exchange Securities. The Private Exchange Securities will be issued under the
same indenture as the Exchange Securities, and the Issuer shall use its
reasonable best efforts to cause the Private Exchange Securities to bear the
same CUSIP number as the Exchange Securities.
In connection with the Registered Exchange Offer, the Issuer
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 Registered Exchange Offer open for not less than
20 business days (or longer, if required by applicable law) after the
date on which notice of the Registered Exchange Offer is mailed to the
Holders;
(c) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City of
New York;
(d) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York City time, on the last
business day on which the Registered Exchange Offer shall remain open;
and
(e) otherwise comply in all respects with all laws that are
applicable to the Registered Exchange Offer.
As soon as practicable after the close of the Registered
Exchange Offer and any Private Exchange, as the case may be, the Issuer shall:
(a) accept for exchange all Securities tendered and not
validly withdrawn pursuant to the Registered Exchange Offer and the
Private Exchange;
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(b) deliver to the Trustee for cancelation all Securities so
accepted for exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as
the case may be, promptly to authenticate and deliver to each Holder,
Exchange Securities or Private Exchange Securities, as the case may be,
equal in principal amount to the Securities of such Holder so accepted
for exchange.
The Issuer and the Note Guarantors shall use their reasonable
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 used by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Securities;
provided that (i) in the case where such prospectus and any amendment or
supplement thereto must be delivered by an Exchanging Dealer, such period shall
be the lesser of 90 days and the date on which all Exchanging Dealers have sold
all Exchange Securities held by them and (ii) the Issuer shall make such
prospectus and any amendment or supplement thereto available to any
broker-dealer for use in connection with any resale of any Exchange Securities
for a period of not less than 90 days after the consummation of the Registered
Exchange Offer.
The Indenture or the Exchange Securities Indenture, as the
case may be, shall provide that the Securities, the Exchange Securities and the
Private Exchange Securities shall vote and consent together on all matters as
one class and that none of the Securities, the Exchange Securities or the
Private Exchange Securities will have the right to vote or consent as a separate
class on any matter.
Interest on each Exchange Security and Private Exchange
Security issued pursuant to the Registered Exchange Offer and in the Private
Exchange will accrue from the last interest payment date on which interest was
paid on the Securities surrendered in exchange therefor or, if no interest has
been paid on the Securities, from the Issue Date.
Each Holder participating in the Registered Exchange Offer
shall be required to represent to the Issuer that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such Holder will be acquired in the ordinary course of business,
(ii) such Holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act and (iii) such Holder is not an
affiliate of the Issuer or, if it is such an affiliate, such Holder will comply
with the registration and prospectus delivery requirements of the Securities Act
to the extent applicable.
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Notwithstanding any other provisions hereof, the Issuer and
the Note Guarantors will ensure that (i) any Exchange Offer Registration
Statement and any amendment thereto and any prospectus forming part thereof and
any supplement thereto complies in all material respects with the Securities Act
and the rules and regulations of the Commission thereunder, (ii) any Exchange
Offer 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 Exchange
Offer Registration Statement, and any supplement to such prospectus, does not,
as of the consummation of the Registered Exchange Offer, include an untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading.
2. Shelf Registration. If (i) because of any change in law or
applicable interpretations thereof by the Commission's staff the Issuer is not
permitted to effect the Registered Exchange Offer as contemplated by Section 1
hereof, or (ii) any Securities validly tendered pursuant to the Registered
Exchange Offer are not exchanged for Exchange Securities within 300 days after
the Issue Date, or (iii) any Initial Purchaser so requests with respect to
Securities or Private Exchange Securities not eligible to be exchanged for
Exchange Securities in the Registered Exchange Offer and held by it following
the consummation of the Registered Exchange Offer, or (iv) any applicable law or
interpretations do not permit any Holder to participate in the Registered
Exchange Offer, or (v) any Holder that participates in the Registered Exchange
Offer does not receive freely transferable Exchange Securities in exchange for
tendered Securities, or (vi) the Issuer so elects, then the following provisions
shall apply:
(a) The Issuer and the Note Guarantors shall use their
reasonable best efforts to file as promptly as practicable with the
Commission, and thereafter shall use their reasonable best efforts to
cause to be declared effective, a shelf registration statement on an
appropriate form under the Securities Act relating to the offer and
sale of the Transfer Restricted Securities (as defined below) by the
Holders thereof from time to time in accordance with the methods of
distribution set forth in such registration statement (hereafter, a
"Shelf Registration Statement" and, together with any Exchange Offer
Registration Statement, a "Registration Statement").
(b) The Issuer and the Note Guarantors shall use their
reasonable best efforts to keep the Shelf Registration Statement
continuously effective in order to permit the prospectus forming part
thereof to be used by Holders of Transfer Restricted Securities for a
period ending on the earlier of (i) two years from the Issue Date or
such shorter period that will terminate when all the Transfer
Restricted Securities covered by the Shelf Registration Statement have
been sold
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pursuant thereto and (ii) the date on which the Securities become
eligible for resale without volume restrictions pursuant to Rule 144
under the Securities Act (in any such case, such period being called
the "Shelf Registration Period"). The Issuer and the Note Guarantors
shall be deemed not to have used their reasonable best efforts to keep
the Shelf Registration Statement effective during the requisite period
if any of them voluntarily take any action that would result in Holders
of Transfer Restricted Securities covered thereby not being able to
offer and sell such Transfer Restricted Securities during that period,
unless such action is (A) required by applicable law or (B) such action
was permitted by Section 2(c).
(c) Notwithstanding the provisions of Section 2(b) (but
subject to the provisions of Section 3(b)), the Issuer and the Note
Guarantors may issue a notice that the Shelf Registration Statement is
unusable pending the announcement of a material corporate transaction
and may issue any notice suspending use of the Shelf Registration
Statement required under applicable securities laws to be issued.
(d) Notwithstanding any other provisions hereof, the Issuer
and the Note Guarantors will 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 Securities Act and the rules and regulations of the Commission
thereunder, (ii) any Shelf Registration Statement and any amendment
thereto (in either case, other than with respect to information
included therein in reliance upon or in conformity with written
information furnished to the Issuer by or on behalf of any Holder
specifically for use therein (the "Holders' Information") does not, at
the time that it became 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 (in either case, other than with
respect to Holders' Information), does not include an untrue statement
of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
3. Liquidated Damages. (a) The parties hereto agree that the
Holders of Transfer Restricted Securities will suffer damages if the Issuer and
the Note Guarantors fail to fulfill their obligations under Section 1 or Section
2, as applicable, and that it would not be feasible to ascertain the extent of
such damages. Accordingly, if (i)
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the applicable Registration Statement is not filed with the Commission on or
prior to 150 days after the Issue Date, (ii) the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may be, is not
declared effective within 270 days after the Issue Date (or in the case of a
Shelf Registration Statement required to be filed in response to a change in law
or the applicable interpretations of Commission's staff, if later, within 60
days after publication of the change in law or interpretation), (iii) the
Registered Exchange Offer is not consummated on or prior to 300 days after the
Issue Date, other than in the event that the Issuer and the Note Guarantors file
a Shelf Registration Statement, or (iv) the Shelf Registration Statement is
filed and declared effective within 270 days after the Issue Date (or in the
case of a Shelf Registration Statement required to be filed in response to a
change in law or the applicable interpretations of Commission's staff, if later,
within 60 days after publication of the change in law or interpretation but in
no event within 270 days after the Issue Date) but shall thereafter cease to be
effective (other than at any time that the Issuer and the Note Guarantors are
not obligated to maintain the effectiveness thereof, including as set forth in
Sections 2(c) and 3(b)) without being succeeded within 45 days by an additional
Registration Statement filed and declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), the Issuer and the Note
Guarantors will be jointly and severally obligated to pay liquidated damages to
each Holder of Transfer Restricted Securities, during the period of one or more
such Registration Defaults, in an amount equal to $ 0.192 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder until (i)
the applicable Registration Statement is filed, (ii) the Exchange Offer
Registration Statement is declared effective and the Registered Exchange Offer
is consummated, (iii) the Shelf Registration Statement is declared effective or
(iv) the Shelf Registration Statement again becomes effective, as the case may
be. Following the cure of all Registration Defaults, the accrual of liquidated
damages will cease. As used herein, the term "Transfer Restricted Securities"
means (i) each Security until the date on which such Security has been exchanged
for a freely transferable Exchange Security in the Registered Exchange Offer,
(ii) each Security or Private Exchange Security until the date on which it has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iii) each Security or
Private Exchange Security until the date on which it is distributed to the
public pursuant to Rule 144 under the Securities Act or is saleable pursuant to
Rule 144(k) under the Securities Act. Notwithstanding anything to the contrary
in this Section 3(a) or Section 3(b), the Issuer and the Note Guarantors shall
not be required to pay liquidated damages to a Holder of Transfer Restricted
Securities if such Holder failed to comply with its obligations to make the
representations set forth in the second to last paragraph of Section 1 or failed
to provide the information required to be provided by it, if any, pursuant to
Section 4(n).
(b) Notwithstanding the foregoing provisions of Section 3(a),
the Issuer and the Note Guarantors may issue a notice that the Shelf
Registration Statement is unusable pending the announcement of a material
corporate transaction and may issue any notice suspending use of the Shelf
Registration Statement required under applicable
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securities laws to be issued and, in the event that the aggregate number of days
in any consecutive twelve-month period for which all such notices are issued and
effective exceeds 60 days in the aggregate, then the Issuer and the Note
Guarantors will be jointly and severally obligated to pay liquidated damages to
each Holder of Transfer Restricted Securities in an amount equal to $0.192 per
week per $1,000 principal amount of Securities constituting Transfer Restricted
Securities held by such Holder. Upon the Issuer and the Note Guarantors
declaring that the Shelf Registration Statement is useable after the period of
time described in the preceding sentence, accrual of liquidated damages shall
cease; provided, however, that if after any such cessation of the accrual of
liquidated damages, the Shelf Registration Statement again ceases to be useable
beyond the period permitted above, liquidated damages will again accrue pursuant
to the foregoing provisions.
(c) The Issuer shall notify the Trustee and the paying agent
under the Indenture (the "Paying Agent") immediately upon the happening of each
and every Registration Default. The Issuer and the Note Guarantors shall pay the
liquidated damages due on the Transfer Restricted Securities by depositing with
the Paying Agent (which may not be the Issuer for these purposes), in trust, for
the benefit of the Holders thereof, prior to 10:00 a.m., New York City time, on
the next interest payment date specified by the Indenture and the Securities,
sums sufficient to pay the liquidated damages then due. The liquidated damages
due shall be payable on each interest payment date specified by the Indenture
and the Securities to the record holder entitled to receive the interest payment
to be made on such date. Each obligation to pay liquidated damages shall be
deemed to accrue from and including the date of the applicable Registration
Default.
(d) The parties hereto agree that the liquidated damages
provided for in this Section 3 constitute a reasonable estimate of and are
intended to constitute the sole damages that will be suffered by Holders of
Transfer Restricted Securities by reason of the failure of (i) the Shelf
Registration Statement or the Exchange Offer Registration Statement to be filed,
(ii) the Shelf Registration Statement to remain effective or (iii) the Exchange
Offer Registration Statement to be declared effective and the Registered
Exchange Offer to be consummated, in each case to the extent required by this
Agreement.
4. Registration Procedures. In connection with any
Registration Statement, the following provisions shall apply:
(a) The Issuer shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the
Registration Statement and each amendment thereof and each supplement,
if any, to the prospectus included therein; (ii) include the
information set forth in Annex A hereto on the cover, in Annex B hereto
in the "Exchange Offer Procedures" section and the "Purpose of the
Exchange Offer" section and in Annex C hereto in the "Plan of
Distribution"
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section of the prospectus forming a part of the Exchange Offer
Registration Statement, and include the information set forth in Annex
D hereto in the Letter of Transmittal delivered pursuant to the
Registered Exchange Offer; and (iii) if requested by any Initial
Purchaser, include the information required by Items 507 or 508 of
Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement.
(b) The Issuer shall advise each Initial Purchaser, each
Exchanging Dealer and the Holders (if applicable) and, if requested by
any such person, confirm such advice in writing (which advice pursuant
to clauses (ii)-(v) hereof shall be accompanied by an instruction to
suspend the use of the prospectus until the requisite changes have been
made):
(i) when any Registration Statement and any
amendment thereto has been filed with the Commission and when
such Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any request by the Commission after the
effective date of any Registration Statement for amendments or
supplements to such Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of any Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by the Issuer of any
notification with respect to the suspension of the
qualification of the Securities, the Exchange Securities or
the Private Exchange Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event after the
effective date of any Registration Statement that requires the
making of any changes in any Registration Statement or the
prospectus included therein in order that the statements
therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
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(c) The Issuer and the Note Guarantors will make every
reasonable effort to obtain the withdrawal at the earliest possible
time of any order suspending the effectiveness of any Registration
Statement.
(d) The Issuer will furnish to each Holder of Transfer
Restricted Securities included within the coverage of any Shelf
Registration Statement, without charge, at least one conformed copy of
such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules and, if any such
Holder so requests in writing, all exhibits thereto (including those,
if any, incorporated by reference).
(e) The Issuer will, during the Shelf Registration Period,
promptly deliver to each Holder of Transfer Restricted Securities
included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the prospectus (including each
preliminary prospectus) included in such Shelf Registration Statement
and any amendment or supplement thereto as such Holder may reasonably
request; and the Issuer consents to the use of such prospectus or any
amendment or supplement thereto by each of the selling Holders of
Transfer Restricted Securities in connection with the offer and sale of
the Transfer Restricted Securities covered by such prospectus or any
amendment or supplement thereto.
(f) The Issuer will furnish to each Initial Purchaser and each
Exchanging Dealer, and to any other Holder who so requests, without
charge, at least one conformed copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules and, if any Initial Purchaser or Exchanging
Dealer or any such Holder so requests in writing, all exhibits thereto
(including those, if any, incorporated by reference).
(g) The Issuer will, during the Exchange Offer Registration
Period or the Shelf Registration Period, as applicable, promptly
deliver to each Initial Purchaser, each Exchanging Dealer and such
other persons that are required to deliver a prospectus following the
Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement or the
Shelf Registration Statement and any amendment or supplement
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thereto as such Initial Purchaser, Exchanging Dealer or other persons
may reasonably request; and the Issuer and the Note Guarantors consent
to the use of such prospectus or any amendment or supplement thereto by
any such Initial Purchaser, Exchanging Dealer or other persons, as
applicable, as aforesaid.
(h) Prior to the effective date of any Registration Statement,
the Issuer and the Note Guarantors will use their reasonable best
efforts to register or qualify, or cooperate with the Holders of
Securities, Exchange Securities or Private Exchange Securities included
therein and their respective counsel in connection with the
registration or qualification of, such Securities, Exchange Securities
or Private Exchange Securities for offer and sale under the securities
or blue sky laws of such jurisdictions as any such Holder reasonably
requests in writing and do any and all other acts or things reasonably
necessary to enable the offer and sale in such jurisdictions of the
Securities, Exchange Securities or Private Exchange Securities covered
by such Registration Statement; provided that the Issuer and the Note
Guarantors will not be required to qualify generally to do business in
any jurisdiction where they are not then so qualified or to take any
action which would subject them to general service of process or to
taxation in any such jurisdiction where they are not then so subject.
(i) The Issuer and the Note Guarantors will cooperate with the
Holders of Securities, Exchange Securities or Private Exchange
Securities to facilitate the timely preparation and delivery of
certificates representing Securities, Exchange Securities or Private
Exchange Securities to be sold pursuant to any Registration Statement
free of any restrictive legends and in such denominations and
registered in such names as the Holders thereof may request in writing
at least three business days prior to the closing date of any sales of
Securities, Exchange Securities or Private Exchange Securities pursuant
to such Registration Statement.
(j) If any event contemplated by Section 4(b)(ii) through (v)
occurs during the period for which the Issuer and the Note Guarantors
are required to maintain an effective Registration Statement, the
Issuer and the Note Guarantors will promptly prepare and file with the
Commission a post-effective amendment to the Registration Statement or
a supplement to the related prospectus or file any other required
document so that, as thereafter delivered to purchasers of the
Securities, Exchange Securities or Private Exchange Securities from a
Holder, the prospectus will not include an untrue statement of a
material fact or omit to state a
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material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(k) Not later than the effective date of the applicable
Registration Statement, the Issuer will provide a CUSIP number for the
Securities, the Exchange Securities and the Private Exchange
Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Securities, the Exchange Securities or the
Private Exchange Securities, as the case may be, in a form eligible for
deposit with The Depository Trust Issuer.
(l) The Issuer and the Note Guarantors will comply with all
applicable rules and regulations of the Commission and the Issuer will
make generally available to its security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earning statement satisfying the provisions of Section 11(a) of the
Securities Act.
(m) The Issuer and the Note Guarantors will cause the
Indenture or the Exchange Securities Indenture, as the case may be, to
be qualified under the Trust Indenture Act as required by applicable
law in a timely manner.
(n) The Issuer may require each Holder of Transfer Restricted
Securities to be registered pursuant to any Shelf Registration
Statement to furnish to the Issuer such information concerning the
Holder and the distribution of such Transfer Restricted Securities as
the Issuer may from time to time reasonably require for inclusion in
such Shelf Registration Statement, and the Issuer may exclude from such
registration the Transfer Restricted Securities of any Holder that
fails to furnish such information within a reasonable time after
receiving such request.
(o) In the case of a Shelf Registration Statement, each Holder
of Transfer Restricted Securities to be registered pursuant thereto
agrees by acquisition of such Transfer Restricted Securities that, upon
receipt of any notice from the Issuer pursuant to Sections 2(c), 3(b)
or 4(b)(ii) through (v), such Holder will discontinue disposition of
such Transfer Restricted Securities until such Holder's receipt of
copies of the supplemental or amended prospectus
contemplated by Section 4(j) or until advised in writing (the "Advice")
by the Issuer that the use of the applicable prospectus may be resumed.
If the Issuer shall give any notice under Sections 2(c), 3(b) or
4(b)(ii) through (v) during the period that the Issuer is required to
maintain an effective Registration Statement (the "Effectiveness
Period"), such Effectiveness Period shall be extended by the number of
days during such period from and including the date of the giving of
such notice to and including the date when each seller of Transfer
Restricted Securities covered by such Registration Statement shall have
received (x) the copies of the supplemental or amended prospectus
contemplated by Section 4(j) (if an amended or supplemental prospectus
is required) or (y) the Advice (if no amended or supplemental
prospectus is required).
(p) In the case of a Shelf Registration Statement, the Issuer
and the Note Guarantors shall enter into such customary agreements
(including, if requested by the Holders of a majority in aggregate
principle amount of the Exchange Securities, an underwriting agreement
in customary form) and take all such other action, if any, as Holders
of a majority in aggregate principal amount of the Securities, Exchange
Securities and Private Exchange Securities being sold or the managing
underwriters (if any) shall reasonably request in order to facilitate
any disposition of Securities, Exchange Securities or Private Exchange
Securities pursuant to such Shelf Registration Statement.
(q) In the case of a Shelf Registration Statement, the Issuer
shall (i) make reasonably available for inspection by a representative
of, and Special Counsel (as defined below) acting for, Holders of a
majority in aggregate principal amount of the Securities, Exchange
Securities and Private Exchange Securities being sold and any
underwriter participating in any disposition of Securities, Exchange
Securities or Private Exchange Securities pursuant to such Shelf
Registration Statement, all relevant financial and other records,
pertinent corporate documents and properties of the Issuer and its
subsidiaries and (ii) use its reasonable best efforts to have its
officers, directors, employees, accountants and counsel supply all
relevant information reasonably requested by such representative,
Special Counsel or any such underwriter (an "Inspector") in connection
with such Shelf Registration Statement; provided, however, that such
Inspector shall first agree in writing with the Issuer that any
information that is reasonably and in good faith designated by the
Issuer in writing as confidential at the time of delivery of such
information shall be kept confidential by such Inspector, unless (i)
disclosure of such information is required by court or administrative
order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any
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disclosure requirements pursuant to Federal securities laws in
connection with the filing of such Registration Statement or the use of
any prospectus), (iii) such information becomes generally available to
the public other than as a result of a disclosure or failure to
safeguard such information by such Inspector or (iv) such information
becomes available to such Inspector from a source other than the Issuer
and its subsidiaries and such source is not known, after due inquiry,
by the relevant Holder to be bound by a confidentiality agreement;
provided further, that the foregoing investigation shall be coordinated
on behalf of the Holders by one representative designated by and on
behalf of such Holders and any such confidential information shall be
available from such representative to such Holders so long as any
Holder agrees to be bound by such confidentiality agreement.
(r) In the case of a Shelf Registration Statement, the Issuer
shall, if requested by Holders of a majority in aggregate principal
amount of the Securities, Exchange Securities and Private Exchange
Securities being sold, their Special Counsel or the managing
underwriters (if any) in connection with such Shelf Registration
Statement, use its reasonable best efforts to cause (i) its counsel to
deliver an opinion relating to the Shelf Registration Statement and the
Securities, Exchange Securities or Private Exchange Securities, as
applicable, in customary form, (ii) its officers to execute and deliver
all customary documents and certificates requested by Holders of a
majority in aggregate principal amount of the Securities, Exchange
Securities and Private Exchange Securities being sold, their Special
Counsel or the managing underwriters (if any) and (iii) its independent
public accountants to provide a comfort letter or letters in customary
form, subject to receipt of appropriate documentation as contemplated,
and only if permitted, by Statement of Auditing Standards No. 72.
5. Registration Expenses. The Issuer and the Note Guarantors
will jointly and severally bear all expenses incurred in connection with the
performance of its obligations under Sections 1, 2, 3 and 4, other than in
connection with the Exchange Offer Registration Statement, and the Issuer will
reimburse the Initial Purchasers and the Holders for the reasonable fees and
disbursements of one firm of attorneys (in addition to any local counsel) chosen
by the Holders of a majority in aggregate principal amount of the Securities,
the Exchange Securities and the Private Exchange Securities to be sold pursuant
to each Registration Statement (the "Special Counsel") acting for the Initial
Purchasers or Holders in connection therewith which counsel shall be approved by
the Issuer (such approval to not be unreasonably withheld). Each Initial
Purchaser and Holder shall pay all expenses of its counsel other than as set
forth in the preceding sentence, underwriting discounts and commissions (prior
to the reduction thereof with
15
respect to selling concessions, if any) and transfer taxes, if any, relating to
the sale or disposition of such Initial Purchaser's or Holder's Securities
pursuant to the Shelf Registration Statement.
6. Indemnification. (a) In the event of a Shelf Registration
Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Initial Purchaser or Exchanging Dealer, as
applicable, the Issuer and the Note Guarantors shall jointly and severally
indemnify and hold harmless each Holder (including, without limitation, any such
Initial Purchaser or any such Exchanging Dealer), its affiliates, their
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls such Holder within the meaning of the Securities
Act or the Exchange Act (collectively referred to for purposes of this Section 6
and Section 7 as a Holder) from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim, damage, liability or action relating to
purchases and sales of Securities, Exchange Securities or Private Exchange
Securities), to which that Holder may become subject, whether commenced or
threatened, under the Securities Act, the Exchange Act, any other federal or
state statutory law or regulation, at common law or otherwise, insofar as such
loss, claim, damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material fact contained in
any such Registration Statement or any prospectus forming part thereof or in any
amendment or supplement thereto or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and shall reimburse each Holder promptly
upon demand for any legal or other expenses reasonably incurred by that Holder
in connection with investigating or defending or preparing to defend against or
appearing as a third party witness in connection with any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Issuer and the Note Guarantors shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or action arises out of,
or is based upon, an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with any Holders' Information; and provided, further, that with
respect to any such untrue statement in or omission from any related preliminary
prospectus, the indemnity agreement contained in this Section 6(a) shall not
inure to the benefit of any Holder from whom the person asserting any such loss,
claim, damage, liability or action received Securities, Exchange Securities or
Private Exchange Securities to the extent that such loss, claim, damage,
liability or action of or with respect to such Holder results from the fact that
both (A) a copy of the final prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Securities, Exchange
Securities or Private Exchange Securities to such person and (B) the untrue
statement in or omission from the related preliminary prospectus was corrected
in the final prospectus unless, in either case, such failure to deliver the
final prospectus was a result of non-compliance by the Issuer with Section 4(d),
4(e), 4(f) or 4(g).
16
(b) In the event of a Shelf Registration Statement, each
Holder shall indemnify and hold harmless the Issuer, its affiliates, their
respective officers, directors, employees, representatives and agents, and each
person, if any, who controls the Issuer within the meaning of the Securities Act
or the Exchange Act (collectively referred to for purposes of this Section 6(b)
and Section 7 as the Issuer), from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which the
Issuer may become subject, whether commenced or threatened, under the Securities
Act, the Exchange Act, any other federal or state statutory law or regulation,
at common law or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Registration Statement
or any prospectus forming part thereof or in any amendment or supplement thereto
or (ii) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with any Holders' Information furnished to the Issuer by
such Holder, and shall reimburse the Issuer for any legal or other expenses
reasonably incurred by the Issuer in connection with investigating or defending
or preparing to defend against or appearing as a third party witness in
connection with any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that no such Holder shall be liable
for any indemnity claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of Securities, Exchange Securities or
Private Exchange Securities pursuant to such Shelf Registration Statement.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party pursuant to Section 6(a) or 6(b), notify the indemnifying
party in writing of the claim or the commencement of that action; provided,
however, that the failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 6 except to the extent
that it has been materially prejudiced (through the forfeiture of substantive
rights or defenses) by such failure; and provided, further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than the reasonable costs of investigation; provided, however,
that an indemnified party shall have
17
the right to employ its own counsel in any such action, but the fees, expenses
and other charges of such counsel for the indemnified party will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based upon advice of counsel to
the indemnified party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those available to
the indemnifying party, (3) a conflict or potential conflict exists (based upon
advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party)
or (4) the indemnifying party has not in fact employed counsel reasonably
satisfactory to the indemnified party to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or parties.
It is understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees, disbursements and other charges of more than one
separate firm of attorneys (in addition to any local counsel) at any one time
for all such indemnified party or parties. Each indemnified party, as a
condition of the indemnity agreements contained in Sections 6(a) and 6(b), shall
use all reasonable efforts to cooperate with the indemnifying party in the
defense of any such action or claim. No indemnifying party shall be liable for
any settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with its written
consent or if there be a final judgment for the plaintiff in any such action,
the indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld), effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
7. Contribution. If the indemnification provided for in
Section 6 is unavailable or insufficient to hold harmless an indemnified party
under Section 6(a) or 6(b), then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Issuer from the offering and sale
of the Securities, on the one hand, and by a Holder from receiving Securities,
Exchange Securities or Private Exchange Securities, as applicable, registered
under the Securities Act, on the other, or (ii) if the allocation provided by
clause (i) above 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 Issuer and
18
the Note Guarantors, on the one hand, and such Holder, on the other, with
respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Issuer and the
Note Guarantors, on the one hand, and a Holder, on the other, with respect to
such offering and such sale shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Securities (before deducting
expenses) received by or on behalf of the Issuer as set forth in the table on
the cover of the Offering Memorandum, on the one hand, bear to the total
proceeds received by such Holder with respect to its sale of Securities,
Exchange Securities or Private Exchange Securities, on the other. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to the Issuer and the Note Guarantors
or information supplied by the Issuer and the Note Guarantors, on the one hand,
or to any Holders' Information supplied by such Holder, on the other, the intent
of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties
hereto agree that it would not be just and equitable if contributions pursuant
to this Section 7 were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section 7 shall be deemed to include, for
purposes of this Section 7, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending or
preparing to defend any such action or claim. Notwithstanding the provisions of
this Section 7, an indemnifying party that is a Holder of Securities, Exchange
Securities or Private Exchange Securities shall not be required to contribute
any amount in excess of the amount by which the total price at which the
Securities, Exchange Securities or Private Exchange Securities sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
8. Rules 144 and 144A. The Issuer shall use its reasonable
best efforts to file the reports required to be filed by it under the Securities
Act and the Exchange Act in a timely manner and, if at any time the Issuer is
not required to file such reports, it will, upon the written request of any
Holder of Transfer Restricted Securities, make publicly available other
information so long as necessary to permit sales of such Holder's securities
pursuant to Rules 144 and 144A. The Issuer and the Note Guarantors covenant that
they will take such further action as any Holder of Transfer Restricted
Securities may reasonably request, all to the extent required from time to time
to enable such Holder to sell Transfer Restricted Securities without
registration under the Securities Act within the limitation of the exemptions
provided by Rules 144 and 144A (including,
19
without limitation, the requirements of Rule 144A(d)(4)). Upon the written
request of any Holder of Transfer Restricted Securities, the Issuer and the Note
Guarantors shall deliver to such Holder a written statement as to whether they
have complied with such requirements. Notwithstanding the foregoing, nothing in
this Section 8 shall be deemed to require the Issuer to register any of its
securities pursuant to the Exchange Act.
9. Underwritten Registrations. If any of the Transfer
Restricted Securities covered by any Shelf Registration Statement are to be sold
in an underwritten offering, the investment banker or investment bankers and
manager or managers that will administer the offering will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities included in such offering, subject to the consent of the Issuer
(which shall not be unreasonably withheld or delayed), and such Holders shall be
responsible for all underwriting commissions and discounts in connection
therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous. (a) Amendments and Waivers. The provisions
of this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Issuer has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities, the Exchange Securities and the Private
Exchange Securities, taken as a single class. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose Securities, Exchange
Securities or Private Exchange Securities are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
principal amount of the Securities, the Exchange Securities and the Private
Exchange Securities being sold by such Holders pursuant to such Registration
Statement.
(b) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(1) if to a Holder, at the most current address given by
such Holder to the Issuer in accordance with the provisions of this
Section 10(b), which address initially is, with respect to each Holder,
the address of such Holder maintained by
20
the registrar under the Indenture, with a copy in like manner to CSI,
Goldman, and Merrill;
(2) if to an Initial Purchaser, initially at its address
set forth in the Purchase Agreement;
(3) if to the Issuer, initially at the address of the
Issuer set forth in the Purchase Agreement; and
(4) if to the Note Guarantors, initially at the addresses
set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; one business
day after being delivered to a next-day air courier; five business days after
being deposited in the mail; and when receipt is acknowledged by the recipient's
telecopier machine, if sent by telecopier.
(c) Successors And Assigns. This Agreement shall be binding
upon the Issuer, the Note Guarantors and their respective successors and
assigns.
(d) Counterparts. This Agreement may be executed in any number
of counterparts (which may be delivered in original form or by telecopier) 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.
(e) Definition of Terms. For purposes of this Agreement, (a)
the term "business day" means any day on which the New York Stock Exchange, Inc.
is open for trading, (b) the term "subsidiary" has the meaning set forth in Rule
405 under the Securities Act and (c) except where otherwise expressly provided,
the term "affiliate" has the meaning set forth in Rule 405 under the Securities
Act.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Waiver of Immunities. To the extent that the Issuer or
any of the Note Guarantors or any of their respective properties, assets or
revenues may have or
21
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any such legal action, suit
or proceeding, from setoff or counterclaim, from the competent jurisdiction of
any court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution of judgment, or from execution of judgment,
or from other legal process or proceeding for the giving of any relief or for
the enforcement of any judgment, in any competent jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Agreement and the transactions contemplated hereby, the Issuer and each
Note Guarantor hereby irrevocably and unconditionally waives and agrees not to
plead or claim, any such immunity and consent to such relief and enforcement.
(i) Consent to Jurisdiction; Appointment of Agent for Service
of Process; Judgment Currency. (1) The Issuer and each of the Note Guarantors
agrees that any suit, action or proceeding against the Issuer or any Note
Guarantor arising out of or relating to this Agreement may be instituted in any
state or U.S. Federal court in the Borough of Manhattan, The City of New York,
New York, and any appellate court from any thereof, and each of them irrevocably
submits to the non-exclusive jurisdiction of such courts in any suit, action or
proceeding. The Issuer and each of the Note Guarantors irrevocably waives, to
the fullest extent permitted by law, any objection to any suit, action, or
proceeding that may be brought in connection with this Agreement, including such
actions, suits or proceedings relating to securities laws of the United States
of America or any state thereof, in such courts whether on the grounds of venue,
residence or domicile or on the ground that any such suit, action or proceeding
has been brought in an inconvenient forum. The Issuer and each Note Guarantor
agrees that final judgment in any such suit, action or proceeding brought in
such court shall be conclusive and binding upon the Issuer or any Note
Guarantor, as the case may be, and may be enforced in any court to the
jurisdiction of which the Issuer or any Note Guarantor, as the case may be, is
subject by a suit upon such judgment; provided that service of process is
affected upon the Issuer or any Note Guarantor, as the case may be, in the
manner provided by this Section.
(2) The Issuer and each Note Guarantor organized under the
laws of any jurisdiction other than the United Sates, any state thereof
or the District of Columbia irrevocably appoints CT Corporation System
Inc., with offices on the date hereof at 1633 Broadway, New York, New
York 10019, as its authorized agent (the "Authorized Agent"), upon whom
process may be served in any suit, action or proceeding arising out of
or relating to this Agreement or the transactions contemplated herein
which may be instituted in any state or U.S. Federal court in the
Borough of Manhattan, The City of New York, New York, and expressly
accepts the non-exclusive jurisdiction of any such court in respect of
any such suit, action or proceeding. The Issuer and each Note Guarantor
hereby represents and warrants that the Authorized Agent has accepted
such
22
appointment and has agreed to act as said agent for service of process,
and the Issuer and the Note Guarantors agree to take any and all
action, including the filing of any and all documents that may be
necessary to continue such respective appointment in full force and
effect for a period of seven years from the date of this Agreement.
Service of process upon the Authorized Agent shall be deemed, in every
respect, effective service of process upon the Issuer and the Note
Guarantors. Notwithstanding the foregoing, any action involving the
Issuer or any Note Guarantor arising out of or relating to this
Agreement may be instituted in any court of competent jurisdiction in
any other jurisdiction.
(3) Any action, suit or proceeding brought by the Issuer or
any Note Guarantor against any Initial Purchaser arising out of or
based upon this Agreement and the transactions contemplated herein
shall be brought solely in a U.S. Federal or state court in the Borough
of Manhattan, The City of New York, New York, and neither the Issuer or
any Note Guarantor shall initiate or seek to initiate, in the Cayman
Islands or any other jurisdiction other than in such New York courts,
any action, suit or proceeding against any Initial Purchaser arising
out of or based upon this Agreement and the transactions contemplated
herein. The foregoing shall apply, without limitation, to any action
seeking to obtain any injunction or declaratory judgment against the
enforcement of, or a declaratory judgment concerning, any claim by any
Initial Purchaser in respect of this Agreement and any transaction
contemplated herein, and any action challenging the enforceability of
or seeking to invalidate in any respect the submission by the Issuer or
any Note Guarantor hereunder to the jurisdiction of such New York
courts or the designation, pursuant to this Section, of the laws of the
State of New York as the law applicable to this Agreement.
(4) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder into any currency other
than United States dollars, the parties hereto agree, to the fullest
extent that they may effectively do so, that the rate of exchange shall
be the rate at which in accordance with normal banking procedures the
Initial Purchasers, the Issuer, or any Note Guarantor could purchase
United States dollars with the other currency in New York City on the
business day preceding that on which final judgment is given. The
obligation of any Initial Purchaser, the Issuer or any Note Guarantor
in respect of the sum due shall, notwithstanding any judgment in a
currency other than United States dollars, not be discharged until the
first business day following receipt by such Initial Purchaser, the
Issuer or such Note Guarantor of any sum adjudged to be so due in such
other currency, on which (and only to the extent that) such Initial
purchaser, the Issuer or such Note Guarantor may in accordance
23
with normal banking procedures purchase United States dollars with such
other currency; if the United States dollars so purchased are less than
the sum originally due to any Initial Purchaser, the Issuer or any Note
Guarantor hereunder, such Initial Purchaser, the Issuer or such Note
Guarantor agrees, as applicable, as a separate obligation and
notwithstanding any such judgment, to indemnify such Initial Purchaser,
the Issuer or such Note Guarantor against such loss. If the United
States dollars so purchased are greater than the sum originally due to
such Initial Purchaser, the Issuer or such Note Guarantor, such Initial
Purchaser, the Issuer or such Note Guarantor agrees to pay to such
Initial Purchaser, the Issuer or such Note Guarantor, as the case may
be, an amount equal to the excess of the United States dollars so
purchased over the sum originally due to such Initial Purchaser, the
Issuer or such Note Guarantor.
(5) The provisions of this Section shall survive any
termination or cancelation of this Agreement.
(j) No Inconsistent Agreements. The Issuer and each Note
Guarantor represents, warrants and agrees that (i) it has not entered into,
shall not, on or after the date of this Agreement, enter into any agreement that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, (ii) it has not previously
entered into any agreement which remains in effect granting any registration
rights with respect to any of its debt securities to any person and (iii) (with
respect to the Issuer) without limiting the generality of the foregoing, without
the written consent of the Holders of a majority in aggregate principal amount
of the then outstanding Transfer Restricted Securities, it shall not grant to
any person the right to request the Issuer to register any debt securities of
the Issuer under the Securities Act unless the rights so granted are not in
conflict or inconsistent with the provisions of this Agreement.
(i) No Piggyback on Registrations. Neither the Issuer nor any
of its security holders (other than the Holders of Transfer Restricted
Securities in such capacity) shall have the right to include any securities of
the Issuer in any Shelf Registration or Registered Exchange Offer other than
Transfer Restricted Securities.
(j) Severability. The remedies provided herein are cumulative
and not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated,
and the parties hereto shall use their reasonable best
24
efforts to find and employ an alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
25
Please confirm that the foregoing correctly sets forth the
agreement among the Issuer, the Note Guarantors and the Initial Purchasers.
Very truly yours,
SEAGATE TECHNOLOGY INTERNATIONAL,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
NEW SAC,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY HOLDINGS,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY HDD HOLDINGS
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
26
SEAGATE TECHNOLOGY CHINA HOLDING COMPANY,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY ASIA HOLDINGS,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY (IRELAND),
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY MEDIA (IRELAND),
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
27
SEAGATE TECHNOLOGY FAR EAST HOLDINGS,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY (PHILIPPINES),
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY (SAN) HOLDINGS,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE REMOVABLE STORAGE SOLUTIONS
HOLDINGS,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
28
SEAGATE REMOVABLE STORAGE SOLUTIONS
INTERNATIONAL,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE SOFTWARE (CAYMAN) HOLDINGS,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY (US) HOLDINGS, INC.,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY LLC,
by SEAGATE TECHNOLOGY (US) HOLDINGS,
INC., as Managing Member
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
29
SEAGATE US LLC,
by SEAGATE TECHNOLOGY LLC, as
Sole Member
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
REDWOOD ACQUISITION CORPORATION,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE REMOVABLE STORAGE SOLUTIONS
(US) HOLDINGS, INC.,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE REMOVABLE STORAGE SOLUTIONS
LLC,
by SEAGATE REMOVABLE STORAGE
SOLUTIONS (US) HOLDINGS, INC.,
as Sole Member
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
30
SEAGATE RSS LLC,
by SEAGATE REMOVABLE STORAGE
SOLUTIONS LLC, as Sole Member
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE SOFTWARE INFORMATION
MANAGEMENT GROUP HOLDINGS, INC.,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
QUINTA CORPORATION,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
XIOTECH CORPORATION,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
31
SEAGATE TECHNOLOGY (THAILAND) LIMITED,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY-REYNOSA S. DE R.L.
DE C.V.,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
NIPPON SEAGATE INC.,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
NIPPON SEAGATE SOFTWARE, INC.,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
32
SEAGATE SINGAPORE DISTRIBUTION PTE
LTD,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE SOFTWARE INFORMATION PTE LTD,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE DISTRIBUTION (UK) LIMITED,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE TECHNOLOGY (MARLOW) LIMITED,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
33
SEAGATE SOFTWARE INFORMATION
MANAGEMENT GROUP LIMITED,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
XIOTECH (CANADA) LIMITED,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
SEAGATE SOFTWARE (CANADA), INC.,
by /s/ Kenneth Hao
-------------------------------------
Name: Kenneth Hao
Title: Vice President
34
Accepted:
CHASE SECURITIES INC.,
by /s/ Sean Holland
---------------------------------------------------
Authorized Signatory
GOLDMAN, SACHS & CO.,
by /s/ Goldman, Sachs & Co.
---------------------------------------------------
Authorized Signatory
MERRILL LYNCH, PIERCE,
FENNER & SMITH
INCORPORATED,
by /s/ Michael Senft
----------------------------------------------------
Authorized Signatory
SCHEDULE I
NOTE GUARANTORS
Name Jurisdiction of Organization
- ---- ----------------------------
New SAC Cayman Islands
Seagate Technology Holdings Cayman Islands
Seagate Technology HDD Holdings Cayman Islands
Seagate Technology China Holding Company Cayman Islands
Seagate Technology Asia Holdings Cayman Islands
Seagate Technology (Ireland) Cayman Islands/
Located in Northern Ireland
Seagate Technology Media (Ireland) Cayman Islands/
Located in Northern Ireland
Seagate Technology Far East Holdings Cayman Islands
Seagate Technology (Philippines) Cayman Islands
Seagate Technology (SAN) Holdings Cayman Islands
Seagate Removable Storage Solutions Holdings Cayman Islands
Seagate Removable Storage Solutions International Cayman Islands
Seagate Software (Cayman) Holdings Cayman Islands
Seagate Technology (US) Holdings, Inc. Delaware
Seagate Technology LLC Delaware
Seagate US LLC Delaware
Redwood Acquisition Corporation Delaware
Seagate Removable Storage Solutions (US) Holdings, Inc Delaware
Seagate Removable Storage Solutions LLC Delaware
Seagate RSS LLC Delaware
Seagate Software Information Management Group Delaware
Holdings, Inc.
Name Jurisdiction of Organization
- ---- ----------------------------
Quinta Corporation California
XIOtech Corporation Minnesota
Seagate Technology (Thailand) Limited Thailand
Seagate Technology-Reynosa, S. de R.L. de C.V. Mexico
Nippon Seagate Inc. Japan
Nippon Seagate Software, Inc. Japan
Seagate Singapore Distribution Pte Ltd Singapore
Seagate Software Information Pte Ltd Singapore
Seagate Distribution (UK) Limited Scotland
Seagate Technology (Marlow) Limited England & Wales
Seagate Software Information Management Group Limited England & Wales
XIOtech (Canada) Limited Canada
Seagate Software (Canada), Inc. Canada
ANNEX A
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. The Letter of Transmittal states that by so acknowledging and by
delivering a prospectus, a broker-dealer will not be deemed to admit that it is
an "underwriter" within the meaning of the Securities Act. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
broker-dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Issuer has agreed that, for a period of 180 days after the
Expiration Date (as defined herein), it will make this Prospectus available to
any broker-dealer for use in connection with any such resale. See "Plan of
Distribution".
ANNEX B
Each broker-dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its
own account pursuant to the Registered Exchange Offer must acknowledge that it
will deliver a prospectus in connection with any resale of such Exchange
Securities. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Securities received in exchange for Securities where such Securities were
acquired as a result of market-making activities or other trading activities.
The Issuer has agreed that, for a period of 180 days after the Expiration Date,
it will make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In addition, until 40
days after the commencement of the offering, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Issuer will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Registered Exchange Offer
may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of
options on the Exchange Securities or a combination of such methods of resale,
at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or at negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer or the purchasers of any such Exchange Securities. Any
broker-dealer that resells Exchange Securities that were received by it for its
own account pursuant to the Registered Exchange Offer and any broker or dealer
that participates in a distribution of such Exchange Securities may be deemed to
be an "underwriter" within the meaning of the Securities Act and any profit on
any such resale of Exchange Securities and any commission or concessions
received by any such persons may be deemed to be underwriting compensation under
the Securities Act. The Letter of Transmittal states that, by acknowledging that
it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the Expiration Date the Issuer
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Issuer has agreed to pay all expenses incident
to the Registered Exchange Offer other than commissions or concessions of any
broker-dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
ANNEX D
|_| CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
Address:
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.