EXHIBIT 99.9
$200,000,000
URS CORPORATION
11 1/2% SENIOR NOTES DUE 2009
REGISTRATION RIGHTS AGREEMENT
August 22, 2002
Credit Suisse First Boston Corporation
Wells Fargo Securities, LLC
BNP Paribas Securities Corp.
The Royal Bank of Scotland plc
BMO Nesbitt Burns Corp.
ING Financial Markets LLC
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Ladies and Gentlemen:
URS Corporation, a Delaware corporation (the "ISSUER"), proposes to
issue and sell to Credit Suisse First Boston Corporation, Wells Fargo
Securities, LLC, BNP Paribas Securities Corp., The Royal Bank of Scotland plc,
BMO Nesbitt Burns Corp. and ING Financial Markets LLC (collectively, the
"INITIAL PURCHASERS"), upon the terms set forth in a purchase agreement dated as
of August 14, 2002 (the "PURCHASE AGREEMENT"), $200,000,000 aggregate principal
amount of its 11 1/2% Senior Notes due 2009 (the "INITIAL SECURITIES") to be
guaranteed (the "GUARANTIES") by each subsidiary of the Company listed on
Schedule B to the Purchase Agreement (the "GUARANTORS") and, collectively with
the Issuer, the "COMPANY"). The Initial Securities will be issued pursuant to an
Indenture, dated as of August 22, 2002 (the "INDENTURE"), among the Issuer, the
Guarantors named therein and U.S. Bank, N.A., as trustee (the "TRUSTEE"). As an
inducement to the Initial Purchasers to enter into the Purchase Agreement, the
Company agrees with the Initial Purchasers, for the benefit of the Initial
Purchasers and the holders of the Securities (as defined below) (collectively
the "HOLDERS"), as follows:
1. Registered Exchange Offer. Unless not permitted by applicable law
(after the Company has complied with the ultimate paragraph of this Section 1),
the Company shall prepare and, not later than 90 days (such 90th day being a
"FILING DEADLINE") after the date hereof (the "CLOSING DATe"), file with the
Securities and Exchange Commission (the "COMMISSION") a registration statement
(the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), with respect to a
proposed offer (the "REGISTERED EXCHANGE OFFER") to the Holders of Transfer
Restricted Securities (as defined in Section 6 hereof), who are not prohibited
by any law or policy of the Commission from participating in the Registered
Exchange Offer, to issue and deliver to such Holders, in exchange for the
Initial Securities, a like aggregate principal amount of debt securities of the
Company issued under the Indenture, identical in all material respects to the
Initial Securities and registered under the Securities Act (the "EXCHANGE
SECURITIES"). The Company shall use commercially reasonable efforts to (i) cause
such Exchange Offer Registration Statement to become effective under the
Securities Act within 210 days after the Closing Date (such 210th day being an
"EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer Registration
Statement effective for not less than 30 days (or longer, if
required by applicable law) after the date notice of the Registered Exchange
Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER
REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the Company (i)
will be entitled to consummate the Registered Exchange Offer 30 days after such
commencement (provided that the Company has accepted all the Initial Securities
theretofore validly tendered in accordance with the terms of the Registered
Exchange Offer) and (ii) will be required to consummate the Registered Exchange
Offer no later than 45 days after the date on which the Exchange Offer
Registration Statement is declared effective (such 45th day being the
"CONSUMMATION DEADLINE"); provided, however, that if the Company is required by
applicable law to keep the Exchange Offer Registration Statement effective for
more than 45 days in accordance with clause (ii) in the preceding paragraph, the
Consummation Deadline shall be automatically extended by such number of days
exceeding 45 for which the Company is required by applicable law to keep the
Exchange Offer Registration Statement effective.
Following the declaration of the effectiveness of the Exchange Offer
Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements or understandings with any person to participate and is not
participating in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) 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 Company acknowledges that, pursuant to current interpretations by
the Commission's staff of Section 5 of the Securities Act, in the absence of an
applicable exemption therefrom, (i) each Holder which is a broker-dealer
electing to exchange Initial 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 the information substantially as set forth in (a) Annex A hereto on
the cover, (b) Annex B hereto in the "Exchange Offer Procedures" (or similarly
titled) section and the "Purpose of the Exchange Offer" (or similarly titled)
section, and (c) Annex C hereto in the "Plan of Distribution" (or similarly
titled) 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 and (ii) an Initial Purchaser that elects to sell
Securities (as defined below) acquired in exchange for Initial Securities
constituting any portion of an unsold allotment, is required to deliver a
prospectus containing the information required by Items 507 or 508 of Regulation
S-K under the Securities Act, as applicable, in connection with such sale.
The Company shall use commercially reasonable efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or an Initial Purchaser, such period
shall be the lesser of 180 days after the consummation of the Registered
Exchange Offer and the date on which all Exchanging Dealers and the Initial
Purchasers have sold all Exchange Securities held by them (unless such period is
extended pursuant to Section 3(j) below) and (ii) the Company 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 180-days after the consummation of the Registered
Exchange Offer.
If, upon consummation of the Registered Exchange Offer, any Initial
Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
such Initial Purchaser upon the written request of such Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by such
Initial Purchaser, a like principal amount of debt securities of the Company
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issued under the Indenture and identical in all material respects to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "Securities".
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30
days (or longer, if required by applicable law) after the date notice
thereof 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, which may be the Trustee or an affiliate of the Trustee;
(d) permit Holders to withdraw tendered Initial Securities at any
time prior to the close of business, New York time, on the last business
day on which the Registered Exchange Offer shall remain open; and
(e) otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Initial Securities validly
tendered and not withdrawn pursuant to the Registered Exchange Offer and
the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
(z) cause the Trustee to authenticate and deliver promptly to
each Holder of the Initial Securities, Exchange Securities or Private
Exchange Securities, as the case may be, equal in principal amount to
the Initial Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not be
subject to the transfer restrictions set forth in the Indenture and that all the
Securities will vote and consent together on all matters as one class and that
none of the Securities will have the right to vote or consent as a class
separate from one another 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
Initial Securities surrendered in exchange therefor or, if no interest has been
paid on the Initial Securities, from the date of original issue of the Initial
Securities.
Each Holder participating in the Registered Exchange Offer shall be
required to represent to the Company 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 Initial Securities or the Exchange Securities within the
meaning of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Company or if it is an
affiliate, such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, that it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of
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market-making activities or other trading activities and that it will be
required to acknowledge that it will deliver a prospectus in connection with any
resale of such Exchange Securities.
Notwithstanding any other provisions hereof, the Company 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
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 include an untrue statement of a material fact or omit
to state 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.
If following the date hereof there has been announced a change in
Commission policy with respect to exchange offers that in the reasonable opinion
of counsel to the Company raises a substantial question as to whether the
Registered Exchange Offer is permitted by applicable federal law, the Company
will seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate the Registered Exchange Offer. The Company
will pursue the issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Company will take all such other reasonable
actions as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without limitation (i)
participating in telephonic conferences with the Commission, (ii) delivering to
the Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded that the
Registered Exchange Offer should be permitted and (iii) diligently pursuing a
resolution (which need not be favorable) by the Commission staff.
2. Shelf Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by the
240th day after the Closing Date, (iii) any Initial Purchaser so requests in
writing within 10 business days following delivery by the Company of written
notice of the consummation of the Registered Exchange Offer with respect to the
Initial Securities (or the Private Exchange Securities) not eligible to be
exchanged for Exchange Securities in the Registered Exchange Offer and held by
it following consummation of the Registered Exchange Offer or (iv) any Holder
(other than an Exchanging Dealer) notifies the Company in writing that such
Holder is not eligible to participate in the Registered Exchange Offer or that
such Holder may not resell the Exchange Notes to the public without delivering a
prospectus and the prospectus filed in connection with the Exchange Offer is not
appropriate or available for such resale by such Holder, the Company shall take
the following actions (the date on which any of the conditions described in the
foregoing clauses (i) through (iv) occur, including in the case of clauses (iii)
or (iv) the receipt of the required notice, being a "TRIGGER DATE"):
(a) The Company shall promptly (but in no event more than 45 days
after the Trigger Date (such 45th day being a "FILING DEADLINE")) file
with the Commission and thereafter use commercially reasonable efforts
to cause to be declared effective no later than the later of 60 days
after the Trigger Date or 210 days after the Closing Date (such latter
day being an "EFFECTIVENESS DEADLINE") a registration statement (the
"SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, a "REGISTRATION STATEMENT") on an appropriate
form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities by the Holders thereof from time to time
in accordance with the methods of distribution set forth in the Shelf
Registration Statement and Rule 415 under the Securities Act
(hereinafter, the "SHELF REGISTRATION"); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions
of this Agreement applicable to such Holder and has returned a properly
completed and signed selling securityholder notice and questionnaire
(together with any amendments or supplements thereto) for use in
preparing such Shelf Registration Statement in accordance with
applicable law.
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(b) The Company shall use commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Securities, for a period of two years (or for
such longer period if extended pursuant to Section 3(j) below) from the
date of its effectiveness or such shorter period that will terminate
when all the Securities covered by the Shelf Registration Statement (i)
have been sold pursuant thereto or (ii) are no longer restricted
securities (as defined in Rule 144 under the Securities Act, or any
successor rule thereof). The Company shall be deemed not to have used
commercially reasonable efforts to keep the Shelf Registration Statement
effective during the requisite period if it voluntarily takes any action
that would result in Holders of Securities covered thereby not being
able to offer and sell such Securities during that period, unless such
action is required by applicable law or is permitted hereunder.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
3. Registration Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any Registered
Exchange Offer contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company 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 and, in the event that an
Initial Purchaser (with respect to any portion of an unsold allotment
from the original offering) is participating in the Registered Exchange
Offer or the Shelf Registration Statement, the Company shall use
commercially reasonable efforts to reflect in each such document, when
so filed with the Commission, such comments as such Initial Purchaser
reasonably may propose within a reasonable time after receipt of any
such document; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures" (or
similarly titled) section and the "Purpose of the Exchange Offer" (or
similarly titled) section and in Annex C hereto in the "Plan of
Distribution" (or similarly titled) 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; (iii) if requested
by an Initial Purchaser within a reasonable time after receipt of any
such document, 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;
and (iv) in the case of a Shelf Registration Statement, include the
names of the Holders who propose to sell Securities pursuant to the
Shelf Registration Statement as selling securityholders; provided,
however, that each such Holder shall have furnished to the Company on a
timely basis such information regarding the Holder as the Company may
require pursuant to Section 3(n) hereof. Notwithstanding the foregoing,
following the effective date of the Shelf Registration Statement, the
Company shall not be required to file more than one supplement or
post-effective amendment to reflect changes in the amount of Initial
Securities held by any particular Holder at the request of such Holder
in any 30-day period.
(b) The Company shall give written notice to the Initial
Purchasers, the Holders of the Securities and any Participating
Broker-Dealer from whom the Company has received prior written notice
that it will be a Participating Broker-Dealer in the Registered Exchange
Offer (which notice pursuant to clauses (ii)-(vi) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until
the requisite changes have been made):
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(i) when the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for amendments or
supplements to the 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 the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or
the initiation or overt threatening of any proceeding for such
purpose;
(v) of the happening of any event that requires the
Company to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the
prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were
made) not misleading; and
(vi) of any determination by the Company, in the exercise
of its reasonable judgment, that (A) it is not in the best
interests of the Company and its stockholders to disclose a
possible acquisition or business combination or other
transaction, business development or event involving the Company
that may require disclosure in the Shelf Registration Statement,
or if required to be kept effective after consummation of the
Exchange Offer, the Exchange Offer Registration Statement, or (B)
obtaining any financial statements relating to an acquisition or
business combination required to be included in the Shelf
Registration Statement, or if required to be kept effective after
consummation of the Exchange Offer, the Exchange Offer
Registration Statement, would be impracticable. In the event of
such determination, the Company may suspend the effectiveness of
the Shelf Registration Statement, or if required to be kept
effective after consummation of the Exchange Offer, the Exchange
Offer Registration Statement, for an aggregate period of not more
than 60 days during any 365-day period. Any notice provided
pursuant to this section shall not be required to disclose any
such possible acquisition, business combination or other
transaction, business development or event if the Company
determines in the exercise of its reasonable judgment that such
acquisition or business combination or other transaction,
business development or event should remain confidential. Upon
the abandonment, consummation or termination of the possible
acquisition or business combination or other transaction,
business development or event or the availability of the required
financial statements with respect to a possible acquisition or
business combination, the suspension of the use of the Shelf
Registration Statement shall cease and the Company shall promptly
comply with Section 3(j) hereof and notify the Holders that
disposition of Transfer Restricted Securities may resume.
(c) The Company shall use commercially reasonable efforts to
obtain the prompt withdrawal of any order suspending the effectiveness
of the Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
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(e) The Company shall deliver to each Exchanging Dealer and each
Initial Purchaser, and to any other Holder who so requests in writing,
without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules.
(f) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Securities included within the coverage of the
Shelf Registration, without charge, as many copies of the prospectus
(including each preliminary prospectus) included in the Shelf
Registration Statement and any amendment or supplement thereto as such
person may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any
amendment or supplement thereto by each of the selling Holders of the
Securities included within the coverage of the Shelf Registration in
connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the
Shelf Registration Statement.
(g) The Company shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other
persons 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 and any amendment
or supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the
use of the prospectus or any amendment or supplement thereto by any
Initial Purchaser, if necessary, any Participating Broker-Dealer and
such other persons required to deliver a prospectus following the
Registered Exchange Offer in connection with the offering and sale of
the Exchange Securities covered by the prospectus, or any amendment or
supplement thereto, included in such Exchange Offer Registration
Statement.
(h) Prior to any public offering of the Securities pursuant to
any Registration Statement the Company shall register or qualify or
cooperate with the Holders of the Securities included therein and their
respective counsel in connection with the registration or qualification
of the Securities for offer and sale under the securities or "blue sky"
laws of such states of the United States as any Holder of the Securities
reasonably requests in writing and do any and all other acts or things
necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement;
provided, however, that the Company shall not be required to (i) qualify
generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action which would subject it to general
service of process or to taxation in any jurisdiction where it is not
then so subject.
(i) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the 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 may request a
reasonable period of time prior to sales of the Securities pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs
(ii) through (vi) of Section 3(b) above during the period for which the
Company is required to maintain an effective Registration Statement, the
Company shall promptly prepare and file any requisite post-effective
amendment to the Registration Statement or any requisite supplement to
the related prospectus and any other required document (except, in the
case of a Shelf Registration Statement, in the event of a suspension of
the effectiveness thereof in accordance with Section 3(b)(vi), the
Company shall not be obligated to file a post-effective amendment or
supplement the related prospectus until the termination of the
suspension and only if such amendment or supplement is then still
required) so that, as thereafter delivered to Holders of the Securities
or purchasers of Securities, the prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
If the Company notifies the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii)
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through (vi) of Section 3(b) above to suspend the use of the prospectus
until the requisite changes to the prospectus have been made, then the
Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus, and
the period of effectiveness of the Shelf Registration Statement provided
for in Section 2(b) above and the Exchange Offer Registration Statement
provided for in Section 1 above shall each be extended by the number of
days from and including the date of the giving of such notice to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received
such amended or supplemented prospectus pursuant to this Section 3(j) or
the Company shall have notified such Holders that disposition of such
Transfer Restricted Securities may resume under the existing prospectus.
(k) Not later than the effective date of the applicable
Registration Statement, the Company will provide a CUSIP number for the
Initial Securities, the Exchange Securities or the Private Exchange
Securities, as the case may be, and, if required, provide the applicable
trustee with printed certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Registered Exchange Offer or the Shelf Registration and will make
generally available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings
statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of each fiscal quarter (or 90
days, if such period is the fourth fiscal quarter) beginning with the
first month of the Company's first fiscal quarter commencing after the
effective date of the Registration Statement, which statement shall
cover such fiscal quarter or, if such fiscal quarter is the fourth
fiscal quarter of the Company's fiscal year, such fiscal year.
(m) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended, in a timely manner and
containing such changes, if any, as shall be necessary for such
qualification. 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.
(n) The Company may require each Holder of Securities to be sold
pursuant to the Shelf Registration Statement to furnish to the Company
such information regarding the Holder and the distribution of the
Securities as the Company may from time to time reasonably require for
inclusion in the Shelf Registration Statement, and the Company may
exclude from such registration the Securities of any Holder that fails
to furnish such information within a reasonable time after receiving
such request.
(o) The Company shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form)
and take all such appropriate other action, if any, as the Holders of
not less than a majority of the aggregate principal amount of the
Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration;
provided, however, that the Company shall not be required to facilitate
an underwritten offering without its consent.
(p) In the case of any Shelf Registration, the Company shall (i)
make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant to
the Shelf Registration Statement and any attorney, accountant or other
agent retained by the Holders of the Securities or any such underwriter
all relevant financial and other records, pertinent corporate documents
and properties of the Company and (ii) cause the Company's officers,
directors, employees, accountants and auditors to supply all relevant
information reasonably requested by the Holders of the Securities or any
such underwriter, attorney, accountant or agent in connection with the
Shelf Registration Statement, in each case, as shall be reasonably
necessary to enable such persons, to conduct a reasonable investigation
within
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the meaning of Section 11 of the Securities Act; provided, however, that
the foregoing inspection and information gathering shall be coordinated
on behalf of the Initial Purchasers by you and on behalf of the other
parties, by one counsel designated by and on behalf of such other
parties as described in Section 4 hereof and shall be subject to any
confidentiality procedures reasonably instituted by the Company.
(q) In the case of any Shelf Registration, the Company, if
requested by the Holders of not less than a majority of the aggregate
principal amount of Securities covered thereby, shall cause (i) its
counsel to deliver an opinion and updates thereof relating to the
Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall
include (subject to reasonable qualifications), without limitation, the
due incorporation and good standing of the Company and the Guarantors;
the due authorization, execution and delivery of the relevant agreement
of the type referred to in Section 3(o) hereof; the due authorization,
execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material
legal or governmental proceedings involving the Company and its
subsidiaries (to the extent not disclosed in the Shelf Registration and
with respect to which such counsel has been engaged); the absence of
governmental approvals (other than those required by the Commission)
required to be obtained in connection with the Shelf Registration
Statement, the offering and sale of the applicable Securities, or any
agreement of the type referred to in Section 3(o) hereof; the compliance
as to form in all material respects of such Shelf Registration Statement
and any documents incorporated by reference therein and of the Indenture
with the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, as of the date of the opinion and as of the effective
date of the Shelf Registration Statement or most recent post-effective
amendment thereto, as the case may be, a statement as to the absence
from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from any documents
incorporated by reference therein of an untrue statement of a material
fact or the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances existing at such time, not misleading; (ii) its
officers to execute and deliver all customary documents and certificates
and updates thereof reasonably requested by any underwriters of the
applicable Securities and (iii) its independent public accountants to
provide to the selling Holders of the applicable Securities and any
underwriter therefor a comfort letter in customary form and covering
matters of the type customarily covered in comfort letters in connection
with primary underwritten offerings, subject to receipt of appropriate
documentation as contemplated, and only if permitted, by Statement of
Auditing Standards No. 72.
(r) In the case of the Registered Exchange Offer, if requested by
any Initial Purchaser or any known Participating Broker-Dealer, the
Company shall cause (i) its counsel to deliver to such Initial Purchaser
or such Participating Broker-Dealer a signed opinion in the form set
forth in Section 6(c) of the Purchase Agreement with such changes as are
customary in connection with the preparation of a Registration Statement
and (ii) its independent public accountants to deliver to such Initial
Purchaser or such Participating Broker-Dealer a comfort letter, in
customary form, meeting the requirements as to the substance thereof as
set forth in Section 6(a) of the Purchase Agreement, with appropriate
date changes.
(s) If a Registered Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Initial Securities by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Securities or the Private Exchange Securities, as the
case may be, the Company shall mark, or caused to be marked, on the
Initial Securities so exchanged that such Initial Securities are being
canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities
be marked as paid or otherwise satisfied.
(t) The Company will use its reasonable efforts to (a) if the
Initial Securities have been rated prior to the initial sale of such
Initial Securities, confirm such ratings will apply to the
9
Securities covered by a Registration Statement, or (b) if the Initial
Securities were not previously rated, cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies,
if so requested by Holders of not less than a majority in aggregate
principal amount of Securities covered by such Registration Statement,
or by the managing underwriters, if any.
(u) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Conduct Rules (the "Rules") of
the National Association of Securities Dealers, Inc. ("NASD")) thereof,
whether as a Holder of such Securities or as an underwriter, a placement
or sales agent or a broker or dealer in respect thereof, or otherwise,
the Company will assist such broker-dealer in complying with the
requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities,
to exercise usual standards of due diligence in respect thereto and, if
any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities, (ii) indemnifying any
such qualified independent underwriter to the extent of the
indemnification of underwriters provided in Section 5 hereof and (iii)
providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Rules.
(v) The Company shall use its reasonable efforts to take all
other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
4. Registration Expenses.
(a) All expenses incident to the Company's performance of and
compliance with this Agreement will be borne by the Company, regardless
of whether a Registration Statement is ever filed or becomes effective,
including without limitation;
(i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal
securities and state "blue sky" or securities laws;
(iii) all expenses of printing (including printing
certificates for the Securities to be issued in the Registered
Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the
Company; and
(v) all fees and disbursements of independent certified
public accountants of the Company (including the expenses of any
special audit and comfort letters required by or incident to such
performance).
The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit
and the fees and expenses of any person, including special experts,
retained by the Company.
(b) In connection with any Registration Statement required by
this Agreement, the Company will reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities who are tendering Initial
Securities in the Registered Exchange Offer and/or selling or reselling
Securities pursuant to the "Plan of Distribution" contained in the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, for the reasonable fees and
10
disbursements of not more than one counsel, who shall be Cravath, Swaine
& Moore unless another firm shall be chosen by the Holders of a majority
in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Holder
of the Securities, any Participating Broker-Dealer and each person, if
any, who controls such Holder or such Participating Broker-Dealer within
the meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "Indemnified Parties") from and against any losses,
claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims,
damages, liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, 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
light of the circumstances under which they were made, and shall
reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect
thereof; provided, however, that (i) the Company shall not be liable in
any such case to the extent that such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Shelf Registration in reliance
upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder
specifically for inclusion therein and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in
any preliminary prospectus relating to a Shelf Registration Statement,
the indemnity agreement contained in this subsection (a) shall not inure
to the benefit of any Holder or Participating Broker-Dealer from whom
the person asserting any such losses, claims, damages or liabilities
purchased the Securities concerned, to the extent that a prospectus
relating to such Securities was required to be delivered by such Holder
or Participating Broker-Dealer under the Securities Act in connection
with such purchase and any such loss, claim, damage or liability of such
Holder or Participating Broker-Dealer results from the fact that there
was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of
the final prospectus if the Company had previously furnished copies
thereof to such Holder or Participating Broker-Dealer; provided further,
however, that this indemnity agreement will be in addition to any
liability which the Company may otherwise have to such Indemnified
Party. The Company shall also indemnify underwriters, their officers and
directors and each person who controls such underwriters within the
meaning of the Securities Act or the Exchange Act under terms to be
agreed with the underwriters.
(b) Each Holder of the Securities, severally and not jointly,
will indemnify and hold harmless the Company and each other Holder
(collectively with the Company, the "HOLDER'S INDEMNITEES") and each
person, if any, who controls any of the Holder's Indemnitees within the
meaning of the Securities Act or the Exchange Act from and against any
losses, claims, damages or liabilities or any actions in respect
thereof, to which the Holder's Indemnitees may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of or are based upon the omission or
alleged omission to state therein a material fact necessary to make the
statements therein not misleading, but in each case only to the
11
extent that the untrue statement or omission or alleged untrue statement
or omission was made in reliance upon and in conformity with written
information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and,
subject to the limitation set forth immediately preceding this clause,
shall reimburse, as incurred, the Holder's Indemnitees for any legal or
other expenses reasonably incurred by the Holder's Indemnitees or any
such controlling person in connection with investigating or defending
any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such
Holder may otherwise have to the Holder's Indemnitees or any of their
respective controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 5, notify the indemnifying party of the
commencement thereof; but the omission to so notify the indemnifying
party will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above unless and to the
extent the indemnifying party did not otherwise learn of such claim and
such omission results in the forfeiture by the indemnifying party of
substantial rights or defenses or the indemnifying party is otherwise
materially prejudiced by such omission. In case any such action is
brought against any indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party (provided, however, that if any such indemnified party
reasonably determines that representation of such indemnifying party and
the indemnified party by the same counsel would present a conflict of
interest, then such counsel 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 the indemnifying party will
not be liable to such indemnified party under this Section 5 for any
legal or other expenses subsequently incurred by such indemnified party
in connection with the defense thereof. No indemnifying party shall,
without the prior written consent of the indemnified party (which
consent shall not be unreasonably withheld or delayed), effect any
settlement of, compromise of or consent to the entry of a judgment in
respect of any pending or threatened action 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
(i) includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action, and
(ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified
party. No indemnified party shall effect any settlement or compromise
of, or consent to the entry of any judgment with respect to, any claim
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
and the indemnifying party shall have no liability hereunder therefor,
without the prior written consent of the indemnifying party, which
consent shall not be unreasonably withheld or delayed. In no event will
any indemnifying party be liable for fees and disbursements of more than
one counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general obligations or
circumstances.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above in such
proportion as is appropriate to reflect (i) the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the exchange of the Securities
pursuant to the Registered Exchange Offer, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the
12
relative fault of the indemnifying party or parties on the one hand and
the indemnified party on the other in connection with the statements or
omissions that 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 the parties 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 information supplied by the Company on
the one hand or such Holder or such other indemnified party, as the case
may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding any other provision
of this Section 5(d), the Holders of the Securities shall not be
required to contribute any amount in excess of the amount by which the
net proceeds received by such Holders from the sale of the Securities
pursuant to a Registration Statement exceeds the amount of damages which
such Holders have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this paragraph (d), each person, if any, who controls
such indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the
sale of the Securities pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf
of any indemnified party.
6. Additional Interest Under Certain Circumstances.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect
to the Securities shall be assessed as follows if any of the following
events occur (each such event in clauses (i) through (iv) below being
herein called a "REGISTRATION DEFAULT"):
(i) any Registration Statement required by this Agreement
is not filed with the Commission on or prior to the applicable
Filing Deadline;
(ii) any Registration Statement required by this Agreement
is not declared effective by the Commission on or prior to the
applicable Effectiveness Deadline;
(iii) the Registered Exchange Offer has not been
consummated on or prior to the Consummation Deadline; or
(iv) any Registration Statement required by this Agreement
has been declared effective by the Commission but (A) such
Registration Statement thereafter ceases to be effective or (B)
such Registration Statement or the related prospectus ceases to
be usable in connection with resales of Transfer Restricted
Securities during the periods specified herein because either (1)
any event occurs as a result of which the related prospectus
forming part of such Registration Statement would include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or (2)
it shall be necessary to amend such Registration Statement or
supplement the related prospectus, to comply with the Securities
Act or the Exchange Act or the respective rules thereunder.
13
Each of the foregoing will constitute a Registration Default
whatever the reason for any such event and whether it is voluntary or
involuntary or is beyond the control of the Company or pursuant to
operation of law or as a result of any action or inaction by the
Commission.
Additional Interest shall accrue on the Transfer Restricted
Securities over and above the interest set forth in the title of the
Securities from and including the date on which any such Registration
Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.25% per annum (the
"ADDITIONAL INTEREST RATE") for the first 90-day period immediately
following the occurrence of such Registration Default. The Additional
Interest Rate shall increase by an additional 0.25% per annum with
respect to each subsequent 90-day period until all Registration Defaults
have been cured, up to a maximum Additional Interest Rate of 1.5% per
annum. The Company shall not be required to pay Additional Interest for
more than one Registration Default at any given time.
(b) A Registration Default referred to in Section 6(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or, if required to be kept effective after
consummation of the Exchange Offer, the Exchange Offer Registration
Statement or the related prospectus if such Registration Default has
occurred solely as a result of (i) the filing of a post-effective
amendment to such Registration Statement to incorporate annual audited
financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related prospectus or (ii) other
material events, with respect to the Company that would need to be
described in such Registration Statement or the related prospectus;
provided, however, that in the case of clause (ii), the Company is
proceeding promptly and in good faith to amend or supplement such
Registration Statement and related prospectus to describe such events or
to otherwise cause such Registration Statement and related prospectus to
again be usable except to the extent that suspension is permissible
pursuant to Section 3(b)(vi); provided, furthermore, that in any case if
such Registration Default occurs for a continuous period in excess of 60
days (or in excess of 45 days following the maximum allowable period for
suspension pursuant to Section 3(b)(vi)), Additional Interest shall be
payable in accordance with the above paragraph from the day such
Registration Default occurs until such Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section
6(a) will be payable in cash on the regular interest payment dates with
respect to the Securities. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest Rate by the
principal amount of the Transfer Restricted Securities and further
multiplied by a fraction, the numerator of which is the number of days
such Additional Interest Rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day
months), and the denominator of which is 360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until
(i) the date on which such Security has been exchanged by a person other
than a broker-dealer for a freely transferable Exchange Security in the
Registered Exchange Offer, (ii) following the exchange by a
broker-dealer in the Registered Exchange Offer of an Initial Security
for an Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such broker-dealer on or prior to the date
of such sale a copy of the prospectus contained in the Exchange Offer
Registration Statement, (iii) the date on which such Security has been
effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on
which such Security 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.
7. Rules 144 and 144A. The Company shall use reasonable 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 Company is not required to file
such reports, it will, upon the reasonable request of any Holder of Securities,
make publicly available other information so long as necessary to permit sales
of their securities pursuant to Rules 144 and 144A. The Company covenants that
it will take such further action as any
14
Holder of Securities may reasonably request, all to the extent required from
time to time to enable such Holder to sell Securities without registration under
the Securities Act within the limitation of the exemptions provided by Rules 144
and 144A (including the requirements of Rule 144A(d)(4)). The Company will
provide a copy of this Agreement to prospective purchasers of Initial Securities
identified to the Company by the Initial Purchasers upon request. Upon the
request of any Holder of Initial Securities, the Company shall deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of not less than a majority in aggregate principal amount of such
Transfer Restricted Securities to be included in such offering; provided,
however, that (a) such investment banker or bankers must be reasonably
satisfactory to the Company and (b) the Company shall not be required to arrange
for or participate in more than one underwritten offering during the Shelf
Registration Period.
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; (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements; and (iii) at least 20% of the aggregate
principal amount of all outstanding Transfer Restricted Securities are included
in such underwritten offering. The holders participating in any underwritten
offering shall be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders. The Company shall be
responsible for the fees and disbursements of its counsel, its independent
public accountants and any printing expenses incurred in connection with any
underwritten offering.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any
failure by the Company to comply with its obligations under Section 1
and 2 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 and 2
hereof. The Company further agrees to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders
in this Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way conflict with
and are not inconsistent with the rights granted to the holders of the
Company's securities under any agreement in effect on the date hereof.
(c) 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, except by the
Company and the written consent of the Holders of not less than a
majority in aggregate principal amount of the Securities affected by
such amendment, modification, supplement, waiver or consents. Without
the consent of the Holder of each Security, however, no modification may
change the provisions relating to the payment of Additional Interest.
15
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchasers;
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010-3629
Fax No.: (212) 325-8278
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019-7475
Fax No.: (212) 474-3700
Attention: Stephen L. Burns
(3) if to the Company, at its address as follows:
URS Corporation
100 California Street
San Francisco, CA 94111
Attention: Chief Financial Officer
with a copy to:
Cooley Godward LLP
One Maritime Plaza, 20th Floor
San Francisco, CA 94111-3580
Fax No.: (415) 951-3699
Attention: Samuel M. Livermore
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered;
three business days after being deposited in the mail, postage prepaid,
if mailed; when receipt is acknowledged by recipient's facsimile machine
operator, if sent by facsimile transmission; and on the day delivered,
if sent by overnight air courier guaranteeing next day delivery.
(e) Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Initial Purchasers, on the other hand, and shall
have the right to enforce such agreements directly to the extent they
may deem such enforcement necessary or advisable to protect their rights
or the rights of Holders hereunder.
(f) Successors and Assigns. This Agreement shall be binding upon
the Company and its successors and assigns.
16
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid,
illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) Securities Held by the Company. Whenever the consent or
approval of Holders of a specified percentage of principal amount of
Securities is required hereunder, Securities held by the Company or its
affiliates (other than subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of their
holdings of such Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage.
The Company and the Guarantors hereby submit to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan
in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
17
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Issuer a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a
binding agreement among the several Initial Purchasers, the Issuer and
the Guarantors in accordance with its terms.
Very truly yours,
URS CORPORATION, a Delaware corporation
by /s/ Kent P. Ainsworth
-----------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President,
Chief Financial Officer and
Secretary
AMAN ENVIRONMENTAL CONSTRUCTION,
INC., a California corporation
by /s/ Jeffrey M. Kissel
-----------------------------------
Name: Jeffrey M. Kissel
Title: Chief Financial Officer
BANSHEE CONSTRUCTION COMPANY, INC., a
California corporation
by /s/ Michael T. Orear
-----------------------------------
Name: Michael T. Orear
Title: President
BRW, INC., a Wyoming corporation
by /s/ Kent P. Ainsworth
-----------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President and
Chief Financial Officer
CLEVELAND WRECKING COMPANY, a
California corporation
by /s/ James P. Sheridan
-----------------------------------
Name: James P. Sheridan
Title: President
CONTRACTING RESOURCES INTERNATIONAL,
INC., a Delaware corporation
by /s/ Joseph Masters
-----------------------------------
Name: Joseph Masters
Title: Vice President
O'BRIEN-KREITZBERG INC., a California
corporation
by /s/ Jeffrey M. Kissel
-----------------------------------
Name: Jeffrey M. Kissel
Title: Chief Financial Officer
18
RADIAN INTERNATIONAL LLC, a Delaware
limited liability company
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Treasurer
SIGNET TESTING LABORATORIES, INC., a
Delaware corporation
by /s/ Kent P. Ainsworth
-----------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President,
Chief Financial Officer
and Secretary
URS CONSTRUCTION SERVICES, INC., a
Florida corporation
by /s/ Kent P. Ainsworth
-----------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President
and Chief Financial Officer
URS CORPORATION, a Nevada corporation
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Treasurer
URS CORPORATION GREAT LAKES, a
Michigan corporation
by /s/ Kent P. Ainsworth
-----------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President
and Chief Financial Officer
URS CORPORATION GROUP CONSULTANTS,
a New York corporation
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Treasurer
URS CORPORATION--MARYLAND, a
Maryland corporation
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Treasurer
19
URS CORPORATION -- OHIO, a Ohio
corporation
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Treasurer
URS CORPORATION SOUTHERN, a California
corporation
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Treasurer
URS GROUP, INC., a Delaware corporation
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Assistant
Treasurer
URS HOLDINGS, INC., a Delaware
corporation
by /s/ David C. Nelson
-----------------------------------
Name: David C. Nelson
Title: Vice President and Treasurer
URS-LSS HOLDINGS, INC., a Delaware
corporation
by /s/ Kent P. Ainsworth
-----------------------------------
Name: Kent P. Ainsworth
Title: Vice President and Treasurer
URS OPERATING SERVICES, INC., a
Delaware corporation
by /s/ Peter J. Pedalino
-----------------------------------
Name: Peter J. Pedalino
Title: Vice President and Controller
WALK HAYDEL & ASSOCIATES, INC., a
Louisiana corporation
by /s/ Kent P. Ainsworth
-----------------------------------
Name: Kent P. Ainsworth
Title: Executive Vice President
and Chief Financial Officer
20
EG&G TECHNICAL SERVICES, INC., a
Delaware corporation
by /s/ William Neeb
-----------------------------
Name: William Neeb
Title: Vice President, Chief Financial
Officer, Assistant Treasurer and
Assistant Secretary
EG&G DEFENSE MATERIALS, INC., a Utah
corporation
by /s/ William Neeb
-----------------------------
Name: William Neeb
Title: Vice President and
Chief Financial Officer
URS INTERNATIONAL, INC., a Delaware
corporation
By: /s/ David C. Nelson
-----------------------------
Name: David C. Nelson
Title: Vice President and
Treasurer
21
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
WELLS FARGO SECURITIES, LLC
BNP PARIBAS SECURITIES CORP.
THE ROYAL BANK OF SCOTLAND PLC
BMO NESBITT BURNS CORP.
ING FINANCIAL MARKETS LLC
By: CREDIT SUISSE FIRST BOSTON CORPORATION
by /s/ James T. Glerum
-----------------------------------
Name: James T. Glerum
Title: Managing Director
22
ANNEX A
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the 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 Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company 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."
23
ANNEX B
Each broker-dealer that receives Exchange Securities for its own account
in exchange for Initial Securities, where such Initial 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."
24
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own account
pursuant to the 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 Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company 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 , 200 , all
dealers effecting transactions in the Exchange Securities may be required to
deliver a prospectus.(1)
The Company 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 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 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 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 Company 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 Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
- --------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the inside front cover page of the Exchange Offer prospectus below the
Table of Contents.
25
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 Initial 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.