EXHIBIT 4.2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of February 17,
2004 (the "Exchange and Registration Rights Agreement").
WHEREAS, Infinity Property and Casualty Corporation, an Ohio
corporation (the "Company"), proposes to issue and sell to the Initial
Purchasers ("the Initial Purchasers"), as defined in the purchase agreement,
dated February 11, 2004 between the Company and the Initial Purchasers (the
"Purchase Agreement"), upon the terms set forth in the Purchase Agreement,
$200.0 million aggregate principal amount of the Company's 5.50% Senior Notes
Due 2014 (the "Securities").
WHEREAS, it is a condition to the Initial Purchasers' obligation to
purchase the Securities that the Company enter into this Agreement;
NOW THEREFORE, the Company hereby undertakes as follows:
1. Certain Definitions. For purposes of this Exchange and Registration
Rights Agreement, the following terms shall have the following respective
meanings:
"Additional Interest" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Base Interest" shall mean the interest that would otherwise accrue on
the Securities under the terms thereof and the Indenture, without giving
effect to the provisions of this Agreement.
The term "broker-dealer" shall mean any broker or dealer registered
with the Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Securities are
initially issued.
"Commission" shall mean the United States Securities and Exchange
Commission, or any other federal agency at the time administering the
Exchange Act or the Securities Act, whichever is the relevant statute for
the particular purpose.
"Effective Time," in the case of (i) an Exchange Registration, shall
mean the time and date as of which the Commission declares the Exchange
Registration Statement effective or as of which the Exchange Registration
Statement otherwise becomes effective and (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration
Statement otherwise becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any successor thereto, as the same shall be amended from time
to time.
"Exchange Offer" shall have the meaning assigned thereto in Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto in
Section 2(a) hereof.
The term "holder" shall mean the Initial Purchasers and other persons
who acquire Registrable Securities from time to time (including any
successors or assigns), in each case for so long as such person is a record
or beneficial owner of any Registrable Securities.
"Indenture" shall mean the Indenture, dated as of February 17, 2004,
between the Company and American Stock Transfer & Trust Company, as trustee
(the "Trustee"), as the same shall be amended from time to time.
"Majority Holders" shall mean the holders of a majority of the
aggregate principal amount of Registrable Securities outstanding; provided,
however, that whenever the consent or approval of holders of a specified
percentage of Registrable Securities is required hereunder, Registrable
Securities held by the Company or any of its affiliates (as such term is
defined in Rule 405 under the Securities Act) shall be disregarded in
determining whether such consent or approval was given by the holders of
such required percentage.
"Notice and Questionnaire" means a Notice of Registration Statement
and Selling Securityholder Questionnaire substantially in the form of
Exhibit A hereto.
"Outstanding" has the meaning specified in the Indenture.
The term "person" shall mean a corporation, association, limited
liability company, partnership, organization, business trust, individual,
government or political subdivision thereof or governmental agency.
"Private Exchange Securities" shall have the meaning set forth in
Section 2(a) hereof.
"Registrable Securities" shall mean the Securities other than any
Exchange Securities issued in an Exchange Offer as contemplated in Section
2(a) hereof (unless such Exchange Securities are held by broker-dealers who
have exchanged their Registrable Securities for Exchange Securities for the
resale of such Exchange Securities, in which case such Exchange Securities
will be deemed to be Registrable Securities until the resale of such
Registrable Securities within the 60-day period referred to in the second
paragraph of Section 2(a)); provided, however, that a Security shall cease
to be a Registrable Security when (i) in the circumstances contemplated by
Section 2(b) hereof, a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes effective
and such Security has been sold or otherwise transferred by the holder
thereof pursuant to and in a manner contemplated by such effective Shelf
Registration Statement; (ii) such Security is sold pursuant to Rule 144
under circumstances in which any legend borne by such Security relating to
restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture; (iii)
such Security is eligible to be sold pursuant to paragraph (k) of Rule 144;
(iv) such Securities shall have been exchanged
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for Private Exchange Securities pursuant to this Agreement, in which case
such Private Exchange Securities will be deemed to be Registrable
Securities until such time as such Private Exchange Securities are sold to
a purchaser in whose hands such Private Exchange Securities are freely
tradeable without any limitations or restrictions under the Securities Act;
or (v) such Security shall cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a) hereof.
"Restricted Holder" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405, (ii) a holder who acquires
Exchange Securities outside the ordinary course of such holder's business,
(iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a broker-dealer who has exchanged its
Registrable Securities for Exchange Securities for the resale of such
Exchange Securities.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case, such
rule promulgated under the Securities Act (or any successor provision), as
the same shall be amended from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended, or
any successor thereto, as the same shall be amended from time to time.
"Shelf Registration" shall mean a registration covering the resale of
Securities or Private Exchange Securities (if any) effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a registration statement of
the Company on Form S-3 filed pursuant to Rule 415(a)(1)(i) under the
Securities Act covering the Shelf Registration, 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 or deemed to be incorporated
by reference therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, or any successor thereto, and the rules, regulations and forms
promulgated thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Exchange and Registration Rights Agreement, and the words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Exchange and
Registration Rights Agreement as a whole and not to any particular Section or
other subdivision.
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2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company agrees to file
under the Securities Act, no later than 90 days after the Closing Date, one
registration statement relating to an offer to exchange (the "Exchange
Registration Statement", and such offer, the "Exchange Offer") any and all of
the Securities for a like aggregate principal amount of debt securities issued
by the Company, which debt securities are substantially identical to the
Securities (and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture or is the Indenture and which has been
qualified under the Trust Indenture Act), except that they have been registered
pursuant to the Exchange Registration Statement which shall have been declared
effective by the Commission and do not contain provisions for the additional
interest contemplated in Section 2(c) below (any such new debt securities
hereinafter called "Exchange Securities"). The Company agrees to use reasonable
best efforts to cause an Exchange Registration Statement to become effective
under the Securities Act no later than 150 days after the Closing Date. The
Exchange Offers will be registered under the Securities Act on the appropriate
form and will comply, in all material respects, with all applicable tender offer
rules and regulations under the Exchange Act. The Company further agrees to use
reasonable best efforts to commence and complete the Exchange Offer promptly,
but no later than 30 days after the Exchange Registration Statement has become
effective and exchange Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn on or prior to the expiration of
the Exchange Offer.
The Exchange Offer will be deemed to have been "completed" only if the
debt securities received by holders other than Restricted Holders in such
Exchange Offer for Registrable Securities are, upon receipt, transferable by
each such holder without restriction under the Securities Act and the Exchange
Act and without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America. The Exchange
Offer shall be deemed to have been completed upon the earlier to occur of (i)
the Company having exchanged Exchange Securities for all outstanding Registrable
Securities pursuant to the Exchange Offer and (ii) the Company having exchanged,
pursuant to such Exchange Offer, Exchange Securities for all Registrable
Securities that have been properly tendered and not withdrawn before the
expiration of the Exchange Offer, which shall be on a date that is at least 20
business days following the commencement of such Exchange Offer. The Company
agrees (x) to include in an Exchange Registration Statement a prospectus for use
in any resales by any holder of Registrable Securities that is a broker-dealer
and (y) to keep such Exchange Registration Statement effective for a period (the
"Resale Period") beginning when Exchange Securities are first issued in the
Exchange Offer and ending upon the earlier of the expiration of the 60th day
after such Exchange Offer has been completed or such time as such broker-dealers
no longer own any Registrable Securities. With respect to such Exchange
Registration Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c) and (d) hereof.
If, at or prior to the consummation of the Exchange Offer, any Initial
Purchaser holds any Securities acquired by it and having the status of an unsold
allotment in the initial offering and sale of Securities pursuant to the
Purchase Agreement, the Company shall, upon the request of such Initial
Purchaser, simultaneously with the delivery of the Exchange Securities
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in the Exchange Offer to other holders, issue and deliver to such Initial
Purchaser in exchange for such Securities a like principal amount of debt
securities of the Company ("Private Exchange Securities") to be issued under the
Indenture with terms identical to the Exchange Securities, except that such debt
securities shall be subject to transfer restrictions and minimum purchase
requirements, shall bear a legend relating to restrictions on ownership and
transfer identical to those applicable to the Securities as a result of the
issuance thereof without registration under the Securities Act and shall provide
for the payment of Additional Interest during any Registration Default. The
Company shall use its reasonable best efforts to have the Private Exchange
Securities bear the same CUSIP number as the Exchange Securities and, if unable
to do so, the Company will, at such time as any Private Exchange Security ceases
to be a "restricted security" within the meaning of Rule 144 under the
Securities Act, permit any such Private Exchange Security to be exchanged for a
like principal amount of Exchange Securities.
(b) (i) If, because of any change in law or applicable interpretations
thereof by the staff of the Commission, the Company is not permitted to effect
the Exchange Offer as contemplated by Section 2(a) hereof, or (ii) if for any
other reason (A) the Exchange Registration Statement is not declared effective
within 150 days following the Closing Date or (B) the Exchange Offer is not
consummated within 30 days after effectiveness of the Exchange Registration
Statement (provided that if the Exchange Registration Statement shall be
declared effective after such 150-day period or if the Exchange Offer shall be
consummated after such 30-day period, then the Company's obligations under this
clause (ii) arising from the failure of the Exchange Registration Statement to
be declared effective within such 150-day period or the failure of the Exchange
Offer to be consummated within such 30-day period, respectively, shall
terminate), or (iii) if any holder (other than an Initial Purchaser holding
Securities acquired directly from the Company as part of the offering and sale
of Securities pursuant to the Purchase Agreement) is not eligible to participate
in the Exchange Offer or elects to participate in the Exchange Offer but does
not receive Exchange Securities which are freely tradeable without any
limitations or restrictions under the Securities Act or (iv) upon the request of
any Initial Purchaser (provided that, in the case of this clause (iv), such
Initial Purchaser shall hold Registrable Securities (including, without
limitation, Private Exchange Securities) that it acquired directly from the
Company as part of the offering and sale of Securities pursuant to the Purchase
Agreement), the Company shall, at its cost:
(A) as promptly as practicable, but no later than 45 days
after so required or requested pursuant to Section 2(b), file with the
Commission a Shelf Registration Statement relating to the resale of
the Registrable Securities by the holders from time to time in
accordance with the methods of distribution elected by the Majority
Holders of such Registrable Securities and set forth in such Shelf
Registration Statement; provided, however, that the Company shall not
be required to file any Shelf Registration Statement earlier than 90
days after the Closing Date;
(B) use its reasonable best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission as
promptly as practicable,
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but in no event later than 60 days after the date on which the Company
files such Shelf Registration Statement.
The Company agrees to use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required, for a period ending on the earlier of the first date that Securities
continuously held by a non-affiliate become eligible to be sold pursuant to
paragraph (k) of Rule 144 or such time as there are no longer any Registrable
Securities outstanding, provided, however, that no holder shall be entitled to
be named as a selling securityholder in such Shelf Registration Statement or to
use the prospectus forming a part thereof for resales of such Registrable
Securities unless such holder agrees to be bound by all of the provisions of
this Agreement applicable to such holder. The Company further agrees to
supplement or make amendments to such Shelf Registration Statement, as and when
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration Statement or
by the Securities Act or rules and regulations thereunder for shelf
registration. The Company further agrees, if necessary, to supplement or amend
the Shelf Registration Statement if reasonably requested by the Majority Holders
with respect to information relating to the holders and otherwise as required by
Section 3(c)(ii) below, to use its reasonable best efforts to cause any such
amendment to become effective and such Shelf Registration Statement to become
usable as soon as practicable thereafter 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 Commission.
(c) In the event that: (i) the Exchange Registration Statement is not filed
with the Commission on or prior to the 90 days following the Closing Date, or
(ii) the Exchange Registration Statement is not declared effective by the
Commission on or prior to 150 days following the Closing Date, or (iii) the
Exchange Offer is not consummated on or prior to 30 days following the effective
date of the Exchange Registration Statement, or (iv) if required, a Shelf
Registration Statement is not filed with the Commission on or prior to 45 days
after the filing obligation arises, or (v) if required, a Shelf Registration
Statement is not declared effective on or prior to the 60 days after the date on
which the Company files such Shelf Registration Statement, or (vi) a Shelf
Registration Statement is declared effective by the Commission but such Shelf
Registration Statement ceases to be effective or such Shelf Registration
Statement or the Prospectus included therein ceases to be usable in connection
with resales of Registrable Securities for any reason (each such event referred
to in clauses (i) through (vi), a "Registration Default" and each period during
which a Registration Default has occurred and is continuing until the earlier of
such time as no Registration Default is in effect or the first date the
Securities become eligible to be sold pursuant to paragraph (k) of Rule 144, a
"Registration Default Period"), then, the Company hereby agrees to pay to each
holder of Registrable Securities affected thereby, additional interest
("Additional Interest"), in addition to the Base Interest, which shall accrue at
a per annum rate of 0.25% for the first 90-day period immediately following the
Registration Default and at a per annum rate of 0.50% for each subsequent 90-day
period, provided that the Company shall in no event be required to pay
Additional Interest for more than one Registration Default at any given time;
provided, further, that, in the event of an occurrence of another Registration
Default, the interest rate shall again be increased by 0.25% for the first
90-day period following such
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Registration Default and 0.50% for each subsequent 90-day period pursuant to the
foregoing provisions.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Additional Interest shall be
paid by depositing with the Trustee, in trust, for the benefit of the holders of
Registrable Securities, on or before the applicable 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 such interest
payment date to the record holder of Registrable 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.
(d) Without limiting the remedies available to the Initial Purchasers
and the holders, the Company acknowledges that any failure by the Company
to comply with its obligations under Sections 2(a) through 2(c) hereof may
result in material irreparable injury to the Initial Purchasers or the
holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the
event of any such failure, the Initial Purchasers and any holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Sections 2(a) through 2(c) hereof.
(e) The Company shall take all actions reasonably necessary or
advisable to be taken by it to ensure that the transactions contemplated
herein are effected as so contemplated.
(f) Any reference herein to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time and any reference herein
to any post-effective amendment to a registration statement as of any time
shall be deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
3. Registration Procedures.
If the Company files a registration statement pursuant to Section 2(a)
or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of any Exchange Registration
Statement or any Shelf Registration Statement, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment
of a new trustee under the Indenture, the Company shall appoint a new
trustee thereunder pursuant to the applicable provisions of the Indenture.
(c) In connection with the Company's obligations with respect to any
registration of Exchange Securities as contemplated by Section 2(a) (an
"Exchange Registration"), if applicable, the Company shall:
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(i) prepare and file with the Commission no later than 90 days after
the Closing Date, an Exchange Registration Statement on any form which may
be utilized by the Company and which shall permit such Exchange Offer and
resales of Exchange Securities by broker-dealers during the Resale Period
to be effected as contemplated by Section 2(a), and use reasonable best
efforts to cause such Exchange Registration Statement to become effective
no later than 150 days after the Closing Date;
(ii) use reasonable best efforts to prepare and file with the
Commission such amendments and supplements to such Exchange Registration
Statement and the prospectus included therein as may be necessary to effect
and maintain the effectiveness of such Exchange Registration Statement for
the periods and purposes contemplated in Section 2(a) hereof and as may be
required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange Registration
Statement, and promptly provide without cost, each broker-dealer holding
Exchange Securities with such number of copies of the prospectus included
therein (as then amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder,
as such broker-dealer reasonably may request prior to the expiration of the
Resale Period, for use in connection with resales of such Exchange
Securities;
(iii) promptly notify in writing each broker-dealer that has requested
or received copies of the prospectus included in such registration
statement (A) when such Exchange Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or
post-effective amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any request by the Commission for amendments or
supplements to such Exchange Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Exchange Registration Statement
under the Securities Act or the initiation of any proceedings for that
purpose, (D) if at any time the representations and warranties of the
Company contemplated by Section 5 hereof cease to be true and correct in
all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Exchange Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, or (F) at any time during the Resale Period
when a prospectus is required to be delivered under the Securities Act,
that such Exchange Registration Statement, prospectus, prospectus amendment
or supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(iv) in the event that the Company would be required, pursuant to
Section 3(c)(iii)(F) above, to notify any broker-dealers holding Exchange
Securities, promptly prepare and furnish to each such holder a reasonable
number of copies of a
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prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder and shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(v) use reasonable best efforts to obtain the withdrawal or lifting of
any order suspending the effectiveness of such Exchange Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(vi) use reasonable best efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such
jurisdictions as are contemplated by Section 2(a) no later than the
commencement of an Exchange Offer, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions
until the expiration of the Resale Period and (C) take any and all other
actions as may be reasonably necessary or advisable to enable each
broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions; provided, however, that the Company shall
not be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required
to qualify but for the requirements of this Section 3(c)(vi), (2) consent
to general service of process in any such jurisdiction or (3) make any
changes to its articles of incorporation or regulations or any agreement
between it and its stockholders;
(vii)use reasonable best efforts to obtain the consent or approval of
each governmental agency or authority, whether federal, state or local,
which may be required in order for the Company to effect such Exchange
Registration and such Exchange Offer;
(viii) provide a CUSIP number for all such Exchange Securities, not
later than the applicable Effective Time;
(ix) use reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its
securityholders as soon as practicable, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(d) In connection with the Company's obligations with respect to any Shelf
Registration, if applicable, the Company shall:
(i) prepare and file with the Commission, within the time periods
specified in Section 2(b), a Shelf Registration Statement on any form which
may be utilized by the Company and which shall register all of the
Registrable Securities for resale by the holders thereof in accordance with
such method or methods of disposition as may be specified by the Majority
Holders included in such offering and use reasonable best
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efforts to cause such Shelf Registration Statement to become effective
within the time periods specified in Section 2(b);
(ii) in the case of a Shelf Registration, (i) notify each holder of
Registrable Securities, at least ten business days prior to filing, that a
Shelf Registration Statement with respect to the Registrable Securities is
being filed and advising such holders that the distribution of Registrable
Securities will be made in accordance with the method elected by the
Majority Holders;
(iii)The Company may require each holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company the
information regarding the holder and the distribution of such securities as
set forth in the Notice and Questionnaire in the form of Exhibit A hereto
or such other information as the Company may from time to time reasonably
require, in connection with any comments received from the Commission or
otherwise, for inclusion in such Registration Statement. The Company may
exclude from such Shelf Registration Statement the Securities of any holder
that unreasonably fails to furnish such information within 30 calendar days
after receiving such request;
(iv) use reasonable best efforts to prepare and file with the
Commission such amendments and supplements to such Shelf Registration
Statement and the prospectus included therein as may be necessary to effect
and maintain the effectiveness of such Shelf Registration Statement for the
period specified in Section 2(b) hereof and as may be required by the
applicable rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement;
(v) use reasonable best efforts to comply with the provisions of the
Securities Act with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in accordance with
the intended methods of disposition by the Majority Holders included in
such Shelf Registration Statement;
(vi) provide (A) the holders selling Registrable Securities pursuant
to any Shelf Registration Statement, (B) the underwriters (which term, for
purposes of this Exchange and Registration Rights Agreement, shall include
a person deemed to be an underwriter within the meaning of Section 2(a)(11)
of the Securities Act), if any, thereof, (C) any sales or placement agent
therefor, (D) counsel for any such underwriter or agent and (E) not more
than one counsel for all the holders selling Registrable Securities
pursuant to any Shelf Registration Statement the opportunity to make any
changes in any Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement or amendment or
supplement to such Prospectus a reasonable time prior to filing any of the
foregoing;
(vii) for a reasonable period prior to the filing of such Shelf
Registration Statement, and throughout the period specified in Section
2(b), make available at reasonable times at the Company's principal place
of business or another reasonable place for inspection by the persons
referred to in Section 3(d)(vi), who shall certify to the Company that they
have a current intention to sell the Registrable Securities pursuant to the
Shelf
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Registration, such financial and other information and books and records of
the Company, and cause the officers and employees of the Company to respond
to such inquiries, as shall be reasonably necessary, to conduct a
reasonable investigation within the meaning of Section 11 of the Securities
Act; provided, however, that each such party shall be required to maintain
in confidence and not to disclose to any other person any information or
records reasonably designated by the Company as being confidential, and to
certify as to the foregoing in writing in advance of such review, until
such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such registration statement or
otherwise), or (B) such person shall be required to so disclose such
information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject to
the requirements of such order, and only after such person shall have given
the Company prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Shelf Registration
Statement or the prospectus included therein or in an amendment to such
Shelf Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with applicable
requirements of the federal securities laws and the rules and regulations
of the Commission and does not contain an untrue statement of a material
fact or omit to state therein a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(viii) advise in writing each holder selling Registrable Securities
pursuant to a Shelf Registration Statement, any sales or placement agent
therefor and any underwriter thereof (which notification may be made
through any managing underwriter that is a representative of such
underwriter for such purpose) (A) when such Shelf Registration Statement or
the prospectus included therein or any prospectus amendment or supplement
or post-effective amendment has been filed, and, with respect to such Shelf
Registration Statement or any post-effective amendment, when the same has
become effective, (B) of any request by the Commission for amendments or
supplements to such Shelf Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration Statement
under the Securities Act or the initiation of any proceedings for that
purpose, (D) if at any time the representations and warranties of the
Company contemplated by Section 5 hereof cease to be true and correct in
all material respects, (E) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of
any proceeding for such purpose, or (F) if at any time when a prospectus is
required to be delivered under the Securities Act, that such Shelf
Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or contains an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and without limitation to any other provisions of this
Agreement, the Company agrees that this Section 3(d)(viii) shall also be
applicable, mutatis mutandis,
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with respect to the Exchange Registration Statement and the prospectus
included therein to the extent that such prospectus is being used by
broker-dealers who have exchanged their Registrable Securities for Exchange
Securities for the resale of such Exchange Securities as contemplated by
Section 2(a);
(ix) use reasonable best efforts to obtain the withdrawal or lifting
of any order suspending the effectiveness of such registration statement or
any post-effective amendment thereto at the earliest practicable date;
(x) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder selling Registrable Securities
pursuant to a Shelf Registration Statement, promptly incorporate in a
prospectus supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission and as
such managing underwriter or underwriters, such agent or such holder
specifies should be included therein relating to the terms of the sale of
such Registrable Securities, including information with respect to the
principal amount of such Registrable Securities being sold by such holder
or agent or to any underwriters, the name and description of such holder,
agent or underwriter, the offering price of such Registrable Securities and
any discount, commission or other compensation payable in respect thereof,
the purchase price being paid therefor by such underwriters and with
respect to any other terms of the offering of the Registrable Securities to
be sold by such holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or post-effective amendment
promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;
(xi) furnish to each holder, each placement or sales agent, if any,
therefor, each underwriter, if any, thereof and their respective counsel a
copy of such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in the
case of such holder of Registrable Securities, upon request) and documents
incorporated by reference therein) and such number of copies of such Shelf
Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by such
holder, agent or underwriter, as the case may be) and of the prospectus
included in such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material
respects with the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder, and such other documents, as such holder, agent, if any, and
underwriter, if any, may reasonably request in order to facilitate the
offering and disposition of the Registrable Securities owned by such
holder, offered or sold by such agent or underwritten by such underwriter
and to permit such holder, agent and underwriter to satisfy the prospectus
delivery requirements of the Securities Act; and the Company hereby
consents to the use of such prospectus (including such preliminary and
summary prospectus) and any amendment or supplement thereto by each such
holder and by any such agent and underwriter, in each case in the form most
recently provided to such person by the Company, in connection with the
offering and sale of the Registrable Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement or
amendment thereto;
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(xii) use reasonable best efforts to (A) register or qualify the
Registrable Securities to be included in such Shelf Registration Statement
under such securities laws or blue sky laws of such jurisdictions within
the United States as any holder shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as
to permit the continuance of offers, sales and dealings therein in such
jurisdictions during the period such Shelf Registration is required to
remain effective under Section 2(b) above and for so long as may be
necessary to enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such Shelf Registration Statement
and (C) take any and all other actions as may be reasonably necessary or
advisable to enable each such holder, agent, if any, and underwriter, if
any, to consummate the disposition in such jurisdictions of such
Registrable Securities; provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to qualify but
for the requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction or (3) make any changes to its
certificate of incorporation or by-laws or any agreement between it and its
stockholders;
(xiii) use reasonable best efforts to obtain the consent or approval
of each governmental agency or authority, whether federal, state or local,
which may be required by the Company in order to effect such Shelf
Registration or the offering or sale contemplated thereby;
(xiv)in the case of an underwritten offering, use reasonable best
efforts to obtain legal opinions and accountants' "comfort letters"
addressed to the holders, any placement or sales agent and any underwriter
in forms customary for public offerings of securities;
(xv) provide a CUSIP number for all such Registrable Securities, not
later than the applicable Effective Time;
(xvi)in the case of an underwritten offering, enter into one or more
underwriting agreements, engagement letters, agency agreements, "best
efforts" underwriting agreements or similar agreements, as appropriate,
including customary provisions relating to indemnification and
contribution, and take such other actions in connection therewith that the
Majority Holders shall reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(xvii) use reasonable best efforts to comply with all applicable rules
and regulations of the Commission, and make generally available to its
securityholders as soon as practicable, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Company, Rule 158 thereunder).
(e) In the event that the Company would be required, pursuant to Section
3(d)(viii)(F) above, to notify the holders selling Registrable Securities
pursuant to a Shelf Registration Statement, the placement or sales agent, if
any, therefor and the managing underwriters, if any, thereof, the Company shall
prepare and furnish to each such holder, to each placement or sales agent, if
any, and to each such underwriter, if any, a reasonable number of copies of
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a prospectus supplemented or amended so that, as thereafter delivered to
purchasers of such Registrable Securities, such prospectus shall conform in
all material respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of the Commission
thereunder and shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. Each such holder agrees that upon receipt
of any notice from the Company pursuant to Section 3(d)(viii)(F) hereof,
such holder shall forthwith discontinue the disposition of the Registrable
Securities pursuant to the Shelf Registration Statement applicable to such
Registrable Securities until such holder shall have received copies of such
amended or supplemented prospectus; and if so directed by the Company, such
holder shall deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, of the prospectus covering such
Registrable Securities in such holder's possession at the time of receipt
of such notice.
(f) In the event the Company is required to file a Shelf Registration
Statement pursuant to Section 2(b), in addition to the information required
to be provided in its Notice and Questionnaire by each holder selling
Registrable Securities pursuant to such Shelf Registration Statement, the
Company may require such holder to furnish to the Company such additional
information regarding such holder's intended method of distribution of the
Registrable Securities if required in order to comply with the Securities
Act. Each such holder agrees to notify the Company as promptly as
practicable of any material inaccuracy or material change in information
previously furnished by such holder to the Company or of the occurrence of
any event in either case as a result of which any prospectus relating to
such Shelf Registration contains or would contain an untrue statement of a
material fact regarding such holder or such holder's intended method of
disposition of such Registrable Securities or omits to state any material
fact regarding such holder or such holder's intended method of disposition
of such Registrable Securities required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and promptly to furnish to the
Company any additional information required to correct and update any
previously furnished information or required so that such prospectus shall
not contain, with respect to such holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(g) Until the expiration of two years after the Closing Date, the
Company will not, and will not permit any of its "affiliates" (as defined
in Rule 144) to, resell any of the Securities that have been reacquired by
any of them except pursuant to an effective registration statement under
the Securities Act.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid all expenses
incident to the Company's performance of or compliance with this Exchange and
Registration Rights Agreement, including (a) all Commission, stock exchange or
National Association of Securities Dealers, Inc., registration, filing and
review fees and expenses including fees and disbursements
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of counsel for the placement or sales agent or underwriters in connection with
such registration, filing and review, (b) all fees and expenses in connection
with the qualification of the Securities for offering and sale under the State
securities and blue sky laws referred to in Sections 3(c)(vi) and 3(d)(xii)
hereof and determination of their eligibility for investment under the laws of
such jurisdictions as any managing underwriters or the holders may designate,
including any fees and disbursements of counsel for the holders or underwriters
in connection with such qualification and determination, (c) all expenses
relating to the preparation, printing, production, distribution and reproduction
of each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the expenses of preparing the Securities for
delivery and the expenses of printing or producing any underwriting agreements,
agreements among underwriters, selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering,
sale or delivery of Securities to be disposed of (including certificates
representing the Securities), (d) messenger, telephone and delivery expenses
relating to the offering, sale or delivery of the Securities and the preparation
of documents referred in clause (c) above, (e) fees and expenses of the Trustee
under the Indenture, any agent of the Trustee and of any collateral agent or
custodian, (f) internal expenses (including all salaries and expenses of the
Company's officers and employees performing legal or accounting duties), (g)
fees, disbursements and expenses of counsel and independent certified public
accountants of the Company (including the expenses of any opinions or "cold
comfort" letters required by or incident to such performance and compliance),
(h) reasonably incurred fees, disbursements and expenses of one counsel for the
holders retained in connection with a Shelf Registration and an Exchange
Registration, as selected by the Majority Holders (which counsel shall be
reasonably satisfactory to the Company and approved by the Company in writing,
it being agreed that Dewey Ballantine LLP is hereby found to be reasonably
satisfactory to the Company), (i) any fees charged by securities rating services
for rating the Securities, (j) in the case of an underwritten offering, any fees
and disbursements of the underwriters customarily paid by issuers or sellers of
securities but excluding fees of counsel to the underwriters or the holders of
Registrable Securities (except as provided in clause (h) above), underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities and (k) fees, expenses and disbursements
of any other persons, including special experts, retained by the Company in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any holder of Registrable Securities or any placement or sales agent therefor or
underwriter thereof, the Company shall promptly reimburse such person for the
full amount of the Registration Expenses so incurred, assumed or paid after
receipt of a request therefor. Notwithstanding the foregoing, the holders of the
Registrable Securities being registered shall pay all agency fees and
commissions and underwriting discounts and commissions attributable to the sale
of such Registrable Securities and the fees and disbursements of any counsel or
other advisors or experts retained by such holders (severally or jointly), other
than the counsel and experts specifically referred to above.
5. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the holders from time to time of Registrable Securities
that:
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(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(d) hereof and
any further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein in the light of the circumstances then existing not misleading; and
at all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such
time as a notice has been given to holders of Registrable Securities
pursuant to Section 3(c)(iii)(F) or Section 3(d)(viii)(F) hereof until (ii)
such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(c)(iv) or Section 3(e) hereof, each such registration
statement, and each prospectus (including any summary prospectus) contained
therein or furnished pursuant to Section 3(c) or Section 3(d) hereof, as
then amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to (i) statements or omissions in the registration statement or
the prospectus made in reliance upon and in conformity with information
furnished in writing by a holder of Registrable Securities expressly for
use therein and (ii) that part of the registration statement which
constitutes the Statement of Eligibility under the Trust Indenture Act of
the Trustee.
(b) The documents to be incorporated by reference in the prospectus,
when they were filed with the Commission, conformed in all material
respects to the requirements of the Exchange Act, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading; and
any further documents so filed and incorporated by reference, when they are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act and will not contain an untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
(c) The compliance by the Company with all of the provisions of this
Exchange and Registration Rights Agreement and the consummation of the
transactions herein contemplated will not result in a breach or violation
of any of the terms or provisions of, or constitute a default under (i) any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries is
subject, (ii) the charter or by-laws (or similar corporate documents) of
the Company or any of its subsidiaries, or (iii) any law, statute or any
order, rule or regulation of any court or regulatory authority or
governmental
-16-
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of its or their properties, except, in the case of
clauses of (i) and (iii), for such breaches, defaults and violations that
would not result in a material adverse change in the condition, financial
or otherwise, or in the earnings, business or operations, whether or not
arising from transactions in the ordinary course of business, of the
Company and its subsidiaries, considered as one entity (any such change is
called a "Material Adverse Change"); and no consent, approval,
authorization, order, registration or qualification of or with any court or
any regulatory authority or other governmental agency or body is required
for the issue and sale of the Registrable Securities or the consummation by
the Company of the transactions contemplated by this Exchange and
Registration Rights Agreement or the Purchase Agreement, except for the
registration of the Registrable Securities under the Act, and the
qualification of an indenture under the Trust Indenture Act, as
contemplated by this Exchange and Registration Rights Agreement, and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or blue sky or insurance securities laws
in connection with the offering and distribution of the Securities.
6. Indemnification.
(a) Indemnification by the Company. The Company will indemnify and
hold harmless the Initial Purchasers each of the holders of Registrable
Securities included in an Exchange Registration Statement or the Shelf
Registration Statement and its partners, members, directors and officers,
and each person, if any, who controls such holder within the meaning of
Section 15 of the Act, and each person who participates as a placement or
sales agent or as an underwriter, its partners, members, directors and
officers and each person, if any, who controls such, placement or sales
agent or underwriter within the meaning of the Act in any offering or sale
of such Registrable Securities (i) against any losses, claims, damages or
liabilities, joint or several, to which such holder, agent, underwriter or
control person may become subject under the Securities Act, the Exchange
Act or other federal or state statutory law or regulation, or at common law
or otherwise (including in settlement of any litigation), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Registration
Statement or Shelf Registration Statement, as the case may be, under which
such Registrable Securities were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or furnished
by the Company to any such holder, agent or underwriter, or any amendment
or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
will reimburse such holder, such agent, such underwriter and such control
person for any legal or other expenses incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any of such documents in reliance upon
and in conformity with written information furnished to the Company by such
person expressly for use therein, including but not limited to information
furnished, in connection with a Shelf Registration Statement, by a holder
of Securities in the Notice and Questionnaire submitted to the Company by
such holder.
-17-
(b) Indemnification by the Holders and any Agents and Underwriters.
The Company may require, as a condition to including any Registrable
Securities in any registration statement filed pursuant to Section 2(b)
hereof and to entering into any underwriting agreement with respect
thereto, that the Company shall have received an undertaking reasonably
satisfactory to it from the holder of such Registrable Securities and from
each underwriter named in any such underwriting agreement, severally and
not jointly, to (i) indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed any Shelf Registration
Statement and each person, if any, who controls the Company within the
meaning of the Securities Act and all other holders of Registrable
Securities, against any losses, claims, damages or liabilities to which the
Company or any such director, officer, controlling person or such other
holders of Registrable Securities may become subject, under the Securities
Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
holder, agent or underwriter), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
an untrue statement or alleged untrue statement of a material fact
contained in such registration statement, or any preliminary, final or
summary prospectus contained therein or furnished by the Company to any
such holder, agent or underwriter, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Company by such holder or
underwriter expressly for use therein; and will reimburse the Company, any
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company or any such director, officer or
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice in writing of the
commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions under this Section 6, notify the indemnifying
party of the commencement of such action; but the failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In
case any such action shall be brought against any indemnified party and it
shall notify an indemnifying party of the commencement thereof, such
indemnifying party shall be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and, after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, such indemnifying party
shall not be liable to such indemnified party for any legal (other than
local counsel) or other expenses, in each case subsequently incurred by
such indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding the
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indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the right
to employ separate counsel (including local counsel), and the indemnifying
party shall bear the reasonable fees, costs and expenses of such separate
counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict
of interest; (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that there may be
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party;
(iii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action; or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent (i) includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding and (ii) does not
include a statement as to or an admission of fault, culpability or failure
to act by or on behalf of any indemnified party.
(d) Contribution. If for any reason the indemnification provisions
contemplated by Section 6(a) or Section 6(b) hereof are unavailable to or
insufficient to hold harmless an indemnified party in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (or actions in respect thereof) in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or by such indemnified
party, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to in this Section 6(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
(or actions in respect thereof) referred to above in this subsection (d)
shall be deemed to include any legal or other expenses incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
holder shall be required to contribute any amount in excess of the amount
by which the total price at which Registrable
-19-
Securities sold by it were offered exceeds the amount of damages that such
holder has otherwise been required 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
1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
7. Underwritten Offerings.
(a) Selection of Underwriters. If any of the Registrable Securities
covered by a Shelf Registration are to be sold pursuant to an underwritten
offering, the managing underwriter or underwriters thereof shall be
designated by Majority Holders of such Registrable Securities included in
such offering, provided that such designated managing underwriter or
underwriters is or are reasonably acceptable to the Company, such
acceptance not to be unreasonably withheld.
(b) Participation by Holders. Each holder of Registrable Securities
hereby agrees with each other such holder that no such holder may
participate in any underwritten offering hereunder unless such holder (i)
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 (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such
underwriting arrangements.
8. Rule 144.
The Company covenants to the holders of Registrable Securities that to
the extent it shall be required to do so under the Exchange Act, the Company
shall timely file the reports required to be filed by it under the Exchange Act
or the Securities Act (including the reports under Section 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144 adopted by the
Commission under the Securities Act) and the rules and regulations adopted by
the Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar or successor rule or regulation hereafter adopted
by the Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company shall
deliver to such holder a written statement as to whether it has complied with
such requirements.
9. Miscellaneous.
(a) Notices. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have
been duly given when delivered by hand, if delivered personally or by
courier, or three days after being deposited in the mail (registered or
certified mail, postage prepaid, return receipt requested) as follows: If
to the Company, to it at 2204 Lakeshore Drive, Birmingham, Alabama 35209,
Facsimile: 205-803-8080, Attention: Secretary, and if to a holder, to the
address of such holder set forth in the
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security register or other records of the Company, or to such other address
as the Company or any such holder may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall be effective only upon receipt.
(b) Parties in Interest. All the terms and provisions of this Exchange
and Registration Rights Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the parties hereto and the holders
from time to time of the Registrable Securities and the respective
successors and assigns of the parties hereto and such holders, its
partners, members, directors, officers, controlling persons and all other
persons referred to in Section 6 hereof. In the event that any transferee
of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of
law or otherwise, such transferee shall, without any further writing or
action of any kind, be deemed a beneficiary hereof for all purposes and
such Registrable Securities shall be held subject to all of the terms of
this Exchange and Registration Rights Agreement, and by taking and holding
such Registrable Securities such transferee shall be entitled to receive
the benefits of, and be conclusively deemed to have agreed to be bound by
all of the applicable terms and provisions of this Exchange and
Registration Rights Agreement. If the Company shall so request, any such
successor, assign or transferee shall agree in writing to acquire and hold
the Registrable Securities subject to all of the applicable terms hereof.
(c) Survival. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Exchange and
Registration Rights Agreement or made pursuant hereto shall remain in full
force and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable
Securities, its partners, members, directors and officers, and each person,
if any, who controls such holder, any agent or underwriter, its partners,
members, directors and officers, and each person, if any, who controls any
of the foregoing within the meaning of Section 15 of the Act, and shall
survive delivery of and payment for the Registrable Securities pursuant to
the Purchase Agreement and the transfer and registration of Registrable
Securities by such holder and the consummation of an Exchange Offer.
(d) GOVERNING LAW. THIS EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
(e) Headings. The descriptive headings of the several Sections and
paragraphs of this Exchange and Registration Rights Agreement are inserted
for convenience only, do not constitute a part of this Exchange and
Registration Rights Agreement and shall not affect in any way the meaning
or interpretation of this Exchange and Registration Rights Agreement.
(f) Entire Agreement; Amendments. This Exchange and Registration
Rights Agreement and the other writings referred to herein (including the
Indenture and the forms of Securities) or delivered pursuant hereto which
form a part hereof contain the entire understanding of the parties with
respect to its subject matter. This Exchange and Registration Rights
Agreement supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Exchange and Registration
Rights Agreement may be amended and the observance of any term of this
Exchange and Registration Rights Agreement may be waived (either generally
or in a particular instance and either retroactively or prospectively) only
by
-21-
a written instrument duly executed by the Company and UBS Securities LLC
and Lehman Brothers Inc. Each holder of any Registrable Securities at the
time or thereafter outstanding shall be bound by any amendment or waiver
effected pursuant to this Section 9(f), whether or not any notice, writing
or marking indicating such amendment or waiver appears on such Registrable
Securities or is delivered to such holder. Any such amendment may be
retroactive so long as such amendment does not adversely affect the rights
of any holder of Registrable Securities in any material respect. In the
case of any amendment that materially and adversely affects the rights of a
holder of Registrable Securities, such amendment must be approved by the
holders of Registrable Securities of not less than a majority of the
Registrable Securities held by the materially and adversely affected
holders of Registrable Securities.
(g) Counterparts. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same
instrument.
-22-
If the foregoing is in accordance with your understanding, please sign
and return to us five counterparts hereof, and upon the acceptance hereof by
you, this letter and such acceptance hereof shall constitute a binding agreement
between the Initial Purchasers and the Company.
Very truly yours,
INFINITY PROPERTY AND CASUALTY
CORPORATION
By:________________________________
Name:
Title:
The foregoing Exchange and Registration Rights Agreement is
hereby confirmed and accepted as of the date first above
written.
LEHMAN BROTHERS INC.
By:________________________________
Name:
Title:
UBS SECURITIES LLC
By:________________________________
Name:
Title:
By:
Name:
Title:
Acting on behalf of themselves and as the
representatives of the Initial Purchasers
-23-
EXHIBIT A
INFINITY PROPERTY AND CASUALTY CORPORATION
INSTRUCTION TO DTC PARTICIPANTS
(Date of Mailing)
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: [DATE]
The Depository Trust Company ("DTC") has identified you as a DTC Participant
through which beneficial interests in Infinity Property and Casualty Corporation
(the "Company") 5.50% Senior Notes Due 2014 (the "Securities") are held.
The Company is in the process of registering the Securities under the Securities
Act of 1933 for resale by the beneficial owners thereof. In order to have their
Securities included in the registration statement, beneficial owners must
complete and return the enclosed Notice of Registration Statement and Selling
Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive a copy of the
enclosed materials as soon as possible as their rights to have the Securities
included in the registration statement depend upon their returning the Notice
and Questionnaire by [DEADLINE FOR RESPONSE]. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Infinity Property
and Casualty Corporation, 2204 Lakeshore Drive, Birmingham, Alabama 35209,
Attention: Secretary, Facsimile: 205-803-8080.
A-1
INFINITY PROPERTY AND CASUALTY CORPORATION
Notice of Registration Statement
and
Selling Securityholder Questionnaire
(Date)
Reference is hereby made to the Exchange and Registration Rights Agreement (the
"Exchange and Registration Rights Agreement") between Infinity Property and
Casualty Corporation (the "Company") and the Initial Purchasers named therein.
Pursuant to the Exchange and Registration Rights Agreement, the Company has
filed with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3 (the "Shelf Registration Statement") for the
registration and resale under Rule 415 of the Securities Act of 1933, as amended
(the "Securities Act"), of the Company's 5.50% Senior Notes Due 2014 (the
"Securities"). A copy of the Exchange and Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Exchange and Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [DEADLINE FOR RESPONSE]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related prospectus.
The term "Registrable Securities" is defined in the Exchange and Registration
Rights Agreement.
A-2
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Exchange and Registration Rights
Agreement, including, without limitation, Section 6 of the Exchange and
Registration Rights Agreement, as if the undersigned Selling Securityholder were
an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Appendix A to the Prospectus and
as Exhibit B to the Exchange and Registration Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-3
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
_________________
_________________
_________________
Telephone: ________________
Fax: ________________
Contact Person:________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned: $ _____
CUSIP No(s). of such Registrable Securities: No(s). __________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned: $____________________
CUSIP No(s). of such other Securities: No(s). __________________
(c) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement: $__________
CUSIP No(s). of such Registrable Securities to be included in the
Shelf Registration Statement: No(s).____________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any other
securities of the Company, other than the Securities listed above in
Item (3).
A-4
State any exceptions here:
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5%
or more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates)
during the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be
sold from time to time directly by the undersigned Selling
Securityholder or, alternatively, through underwriters, broker-dealers
or agents. Such Registrable Securities may be sold in one or more
transactions at fixed prices, at prevailing market prices at the time
of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which
may involve crosses or block transactions) (i) on any national
securities exchange or quotation service on which the Registered
Securities may be listed or quoted at the time of sale, (ii) in the
over-the-counter market, (iii) in transactions otherwise than on such
exchanges or services or in the over-the-counter market, or (iv)
through the writing of options. In connection with sales of the
Registrable Securities or otherwise, the Selling Securityholder may
enter into hedging transactions with broker-dealers, which may in turn
engage in short sales of the Registrable Securities in the course of
hedging the positions they assume. The Selling Securityholder may also
sell Registrable Securities short and deliver Registrable Securities
to close out such short positions, or loan or pledge Registrable
Securities to broker-dealers that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Exchange and
Registration Rights Agreement.
A-5
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 3(d) of
the Exchange and Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any material
inaccuracies or material changes in the information provided herein which may
occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the Exchange
and Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Infinity Property and Casualty Corporation
2204 Lakeshore Drive
Birmingham, Alabama 35209
Facsimile: 205-803-8080
Attention: Secretary
(ii) With a copy to:
Keating, Muething & Klekamp
1 East Fourth Street, 14th Floor
Cincinnati, OH 45202
Facsimile: 513-579-6956
Attention: Mark A. Weiss
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This Exchange
and Registration Rights Agreement shall be governed in all respects by the laws
of the State of New York.
A-6
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated:____________________
________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of
Registrable Securities)
By:_____________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Keating, Muething & Klekamp
1 East Fourth Street, 14th Floor
Cincinnati, OH 45202
Facsimile: 513-579-6956
Attention: Mark A. Weiss
A-7
EXHIBIT B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[____________________]
Attention: Corporate Trust Administration
Re: Infinity Property and Casualty Corporation (the "Company")
5.50% Senior Notes Due 2014
Dear Sirs:
Please be advised that ________________has transferred $___________________
aggregate principal amount of the 5.50% Senior Notes Due 2014 pursuant to an
effective Registration Statement on Form (File No. 333-______ ) filed by the
Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the 5.50% Senior Notes Due 2014 (individually and
collectively known as the "Notes") is named as a "Selling Holder" in the
Prospectus dated [DATE] or in supplements thereto, and that the aggregate
principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
______________________________
(Name)
By:___________________________
(Authorized Signature)
B-1