EXHIBIT 4.5
DST SYSTEMS, INC.
$450,000,000
4.125% SERIES A CONVERTIBLE SENIOR DEBENTURES DUE 2023
$250,000,000
3.625% SERIES B CONVERTIBLE SENIOR DEBENTURES DUE 2023
REGISTRATION RIGHTS AGREEMENT
Dated as of
August 12, 2003
REGISTRATION RIGHTS AGREEMENT dated as of August 12, 2003 between DST
Systems, Inc., a Delaware corporation (together with any successor entity,
herein referred to as the "Company") and Citigroup Global Markets Inc. and Banc
of America Securities LLC, as representatives of the several initial purchasers
(the "Initial Purchasers") under the Purchase Agreement (as defined below).
Pursuant to the Purchase Agreement dated as of August 6, 2003 among the
Company and the Initial Purchasers (the "Purchase Agreement"), the Initial
Purchasers have agreed to purchase from the Company $450,000,000 ($540,000,000
if the Representatives exercise their option in full) in aggregate original
principal amount of 4.125% Series A Convertible Senior Debentures due 2023 and
$250,000,000 ($300,000,000 if the Representatives exercise their option in full)
in aggregate original principal amount of 3.625% Series B Convertible Senior
Debentures due 2023 (collectively, the "Securities"). The Securities will be
convertible into fully paid, nonassessable shares of common stock, par value
$0.01 per share, of the Company (the "Common Stock"). The Securities will be
convertible on the terms, and subject to the conditions, set forth in the
Indenture (as defined herein). To induce the Initial Purchasers to purchase the
Securities, the Company has agreed to provide the registration rights set forth
in this Agreement pursuant to the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions. Capitalized terms used in this Agreement without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized terms shall have the following
meanings:
"Affiliate" of any specified person means any other person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such specified person. For purposes of this definition, control of a
person means the power, direct or indirect, to direct or cause the direction of
the management and policies of such person whether by contract or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement": This Registration Rights Agreement.
"Amendment Effectiveness Deadline Date": As defined in Section 2(e) hereof.
"Blue Sky Application": As defined in Section 6(a)(i) hereof.
"Business Day": The definition of "Business Day" in the Indenture.
"Commission": Securities and Exchange Commission.
"Common Stock": As defined in the preamble hereof.
"Company": As defined in the preamble hereof.
"Effectiveness Period": As defined in Section 2(a)(iii) hereof.
"Effectiveness Target Date": As defined in Section 2(a)(ii) hereof.
"Exchange Act": Securities Exchange Act of 1934, as amended.
"Holder": A Person who owns, beneficially or otherwise, Transfer Restricted
Securities.
"Indemnified Holder": As defined in Section 6(a) hereof.
"Indenture": The Indenture dated as of August 12, 2003 between the Company
and JPMorgan Chase Bank, as trustee (the "Trustee"), pursuant to which the
Securities are to be issued, as such Indenture is amended, modified or
supplemented from time to time in accordance with the terms thereof.
"Initial Purchasers": As defined in the preamble hereof.
"Liquidated Damages": As defined in Section 3(b) hereof.
"Liquidated Damages Payment Date": Each February 15 and August 15.
"Majority of Holders": Holders holding over 50% of the aggregate original
principal amount of Securities outstanding; provided that, for the purposes of
this definition, a holder of shares of Common Stock which constitute Transfer
Restricted Securities issued upon conversion of the Securities shall be deemed
to hold an aggregate original principal amount of Securities (in addition to the
original principal amount of Securities held by such holder) equal to the
quotient of (x) the number of such shares of Common Stock held by such holder
and (y) the conversion rate in effect at the time of such conversion as
determined in accordance with the Indenture.
"NASD": National Association of Securities Dealers, Inc.
"Securities": As defined in the preamble hereof.
"Notice and Questionnaire": A written notice executed by the respective
Holder and delivered to the Company containing substantially the information
called for by the Selling Securityholder Notice and Questionnaire attached as
Annex A to the Offering Memorandum of the Company dated August 6, 2003 relating
to the Securities.
"Notice Holder": On any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.
"Person": An individual, partnership, corporation, company, unincorporated
organization, trust, joint venture or a government or agency or political
subdivision thereof.
"Purchase Agreement": As defined in the preamble hereof.
"Prospectus": The prospectus included in a Shelf Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
"Record Holder": With respect to any Liquidated Damages Payment Date, each
Person who is a Holder of Securities which are Transfer Restricted Securities on
the February 1 or August 1, as the case may be, immediately preceding the
relevant Liquidated Damages Payment Date.
"Registration Default": As defined in Section 3(a) hereof.
"Securities Act": Securities Act of 1933, as amended.
"Shelf Filing Deadline": As defined in Section 2(a)(i) hereof.
"Shelf Registration Statement": As defined in Section 2(a)(i) hereof.
"Subsequent Shelf Registration Statement": As defined in Section 2(c)
hereof.
"Suspension Notice": As defined in Section 4(c) hereof.
"Suspension Period": As defined in Section 4(b)(i) hereof.
"TIA": Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission thereunder, in each case, as in effect on the date
the Indenture is qualified under the TIA.
"Transfer Restricted Securities": Each Security and each share of Common
Stock issued upon conversion of Securities until the earlier of:
(i) the date on which such Security or such share of Common Stock
issued upon conversion has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement;
(ii) the date on which such Security or such share of Common Stock
issued upon conversion is transferred in compliance with Rule 144 under the
Securities Act or may be sold or transferred by a person who is not an
affiliate of the Company pursuant to Rule 144(k) under the Securities Act
(or any other similar provision then in force); or
(iii) the date on which such Security or such share of Common Stock
issued upon conversion ceases to be outstanding (whether as a result of
redemption, repurchase and cancellation, conversion or otherwise).
"Underwritten Registration": A registration in which Securities of the
Company are sold to an underwriter for reoffering to the public.
Unless the context otherwise requires, the singular includes the plural,
and words in the plural include the singular.
2. Shelf Registration.
(a) The Company shall:
(i) not later than 90 days after the date hereof (the "Shelf
Filing Deadline"), cause to be filed a registration statement pursuant
to Rule 415 under the Securities Act (the "Shelf Registration
Statement"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities held by Holders that
have provided the information required pursuant to the terms of
Section 2(e) hereof;
(ii) use its reasonable best efforts to cause the Shelf
Registration Statement to be declared effective by the Commission as
promptly as is practicable, but in no event later than 180 days after
the date hereof (the "Effectiveness Target Date"); and
(iii) use its reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 4(b) hereof to the
extent necessary to ensure that (A) it is available for resales by the
Holders of Transfer Restricted Securities entitled to the benefit of
this Agreement and (B) conforms with the requirements of this
Agreement and the Securities Act and the rules and regulations of the
Commission promulgated thereunder as announced from time to time, for
a period (the "Effectiveness Period") until the earliest of:
(1) the date when the Holders of Transfer Restricted
Securities are able to sell all such Transfer Restricted
Securities immediately pursuant to Rule 144(k) under the
Securities Act; or
(2) the date when all of the Transfer Restricted Securities
are disposed of pursuant to the Shelf Registration Statement or
Rule 144 under the Securities Act or any similar provision then
in effect.
(b) None of the Company's security holders (other than the Holders of
Transfer Restricted Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement, except as
provided in the Registration Rights Agreement dated as of December 21, 1998
among the Company, USCS International, Inc. and the stockholders of USCS
International, Inc. listed on Exhibit A thereto.
(c) If the Shelf Registration Statement or any Subsequent Shelf
Registration Statement ceases to be effective for any reason at any time
during the Effectiveness Period (other than because all Transfer Restricted
Securities shall have been resold pursuant thereto or shall have otherwise
ceased to be Transfer Restricted Securities), the Company shall use its
reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days
of such cessation of effectiveness amend the Shelf Registration Statement
in a manner reasonably expected to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf
Registration Statement covering all of the securities that as of the date
of such filing are Transfer Restricted Securities (a "Subsequent Shelf
Registration Statement"). If a Subsequent Shelf Registration Statement is
filed, the Company shall use its reasonable best efforts to cause the
Subsequent Shelf Registration Statement to become effective as promptly as
is practicable after such filing and to keep such Subsequent Shelf
Registration Statement continuously effective until the end of the
Effectiveness Period.
(d) The Company shall supplement and amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable
to the registration form used by the Company for such Shelf Registration
Statement, if required by the Securities Act or as reasonably requested by
the Initial Purchasers or by the Trustee on behalf of the Holders of the
Transfer Restricted Securities covered by such Shelf Registration
Statement.
(e) Each Holder agrees that if such Holder wishes to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related Prospectus, it will do so only in accordance with this Section 2(e)
and Section 4(b) hereof. Each Holder wishing to sell Transfer Restricted
Securities pursuant to a Shelf Registration Statement and related
Prospectus must deliver a Notice and Questionnaire to the Company. In order
to be named as a selling securityholder in the Prospectus at the time of
effectiveness of the Shelf Registration Statement, the Notice and
Questionnaire must be delivered at least 10 Business Days prior to the
effectiveness of the Shelf Registration Statement. From and after the date
the Shelf Registration Statement is declared effective, the Company shall,
as promptly as practicable after the date a Notice and Questionnaire is
delivered, and in any event upon the later of (x) 10 Business Days after
such date (or, in the event a Notice and Questionnaire is delivered during
the period beginning on and including the date that is 9 Business Days
prior to the date the Shelf Registration Statement is declared effective
and ending on and including the date the Shelf Registration Statement is
declared effective, 10 Business Days after the date the Shelf Registration
Statement is declared effective) or (y) 10 Business Days after the
expiration of any Suspension Period in effect when the Notice and
Questionnaire is delivered:
(i) if required by applicable law, prepare and file with the SEC
a post-effective amendment to the Shelf Registration Statement or
prepare and, if required by applicable law, file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required document
so that the Holder delivering such Notice and Questionnaire is named
as a selling securityholder in the Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to
deliver such Prospectus to purchasers of the Transfer Restricted
Securities in accordance with applicable law and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement,
use its reasonable best efforts to cause such post-effective amendment
to be declared effective under the Securities Act as promptly as is
practicable, but in any event by the date (the "Amendment
Effectiveness Deadline Date") that is 45 days after the date such
post-effective amendment is required by this clause to be filed;
(ii) provide such Holder upon its request copies of any documents
filed pursuant to Section 2(e)(i) hereof; and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(e)(i) hereof;
provided that if such Notice and Questionnaire is delivered during a Suspension
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Suspension Period in accordance with Section
4(b) hereof. Notwithstanding anything contained herein to the contrary, (i) the
Company shall be under no obligation to name any Holder that is not a Notice
Holder as a selling securityholder in any Registration Statement or related
Prospectus and (ii) the Amendment Effectiveness Deadline Date shall be extended
by up to 10 Business Days after the expiration of a Suspension Period (and the
Company shall incur no obligation to pay Liquidated Damages during such
extension) if such Suspension Period shall be in effect on the Amendment
Effectiveness Deadline Date.
3. Liquidated Damages.
(a) Each event referred to in the following clauses (i) through (vi),
is a "Registration Default":
(i) the Shelf Registration Statement is not filed with the
Commission prior to or on the Shelf Filing Deadline;
(ii) the Shelf Registration Statement has not been declared
effective by the Commission prior to or on the Effectiveness Target
Date;
(iii) the Company has failed to perform its obligations set forth
in Section 2(e) hereof within the time period required therein;
(iv) any post-effective amendment to a Shelf Registration filed
pursuant to Section 2(e)(i) hereof has not become effective under the
Securities Act on or prior to the Amendment Effectiveness Deadline
Date;
(v) except as provided in Section 4(b)(i) hereof, the Shelf
Registration Statement is filed and declared effective but, during the
Effectiveness Period, shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded within
five Business Days by a post-effective amendment to the Shelf
Registration Statement, a supplement to the Prospectus or a report
filed with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act that cures such failure and, in the case of
a post-effective amendment, is itself immediately declared effective;
or
(vi) (A) prior to or on the 45th or 60th day, as the case may be,
of any Suspension Period, such suspension has not been terminated or
(B) a Suspension Period when aggregated with other Suspension Periods
during the prior 360-day period exceeds 90 days,
For purposes of this Agreement, each Registration Default set forth above
shall begin and be cured on the dates set forth in the table below:
Type of
Registration
Default Beginning Cure
by Clause Date Date
--------- ---- ----
(i) Shelf Filing Deadline the date the Shelf
Registration Statement is
filed
(ii)
Effectiveness Target Date the date the Shelf
Registration Statement is
declared effective by the
Commission
(iii) the date by which the the date the Company
Company is required to performs its obligations set
perform its obligations forth in Section 2(e) hereof
under Section 2(e) hereof
(iv) the Amendment the date the applicable
Effectiveness Deadline post-effective amendment
Date to a Shelf Registration
Statement becomes
effective under the
Securities Act
(v) the date five Business Days the date any post-effective
following the date that the amendment is declared effective
Shelf Registration Statement by the Commission or any
ceases to be effective or fails supplement to the Prospectus or
to be usable report is filed that makes the
Shelf Registration Statement
usable
(vi) the date on which a Suspension termination of the applicable
Period, or the aggregate Suspension Period
duration of Suspension Periods
in any period, exceeds the
permitted number of days
(b) If a Registration Default occurs, other than a Registration
Default relating to a failure to file or have an effective Shelf
Registration Statement with respect to shares of Common Stock issuable upon
conversion of the Securities that are Transfer Restricted Securities, the
Company hereby agrees to pay interest ("Liquidated Damages") with respect
to the Securities that are Transfer Restricted Securities from and
including the day following beginning of the Registration Default to but
excluding the earlier of (1) the day on which the Registration Default has
been cured and (2) the date the Shelf Registration Statement is no longer
required to be kept effective, accruing at a rate (x) with respect to the
first 90-day period during which a Registration Default shall have occurred
and be continuing, equal to 0.25% per annum of the aggregate accreted
principal amount of the Securities, and (y) with respect to the period
commencing on the 91st day following the day the Registration Default shall
have occurred and be continuing, equal to 0.50% per annum of the aggregate
accreted principal amount of the Securities; provided that in no event
shall Liquidated Damages accrue at a rate per year exceeding 0.50% of the
aggregate accreted principal amount of the Securities. In addition to the
provisions set forth in this Agreement, Section 11.03 of the Indenture
shall apply in the event that a Holder converts some or all of its
Securities into Common Stock when there exists a Registration Default with
respect to the Common Stock.
(c) All accrued Liquidated Damages shall be paid in arrears to Record
Holders by the Company on each Liquidated Damages Payment Date. Upon the
cure of all Registration Defaults relating to any particular Security, the
accrual of Liquidated Damages with respect to such Security will cease.
(d) All obligations of the Company set forth in this Section 3 that
are outstanding with respect to any Security that is a Transfer Restricted
Security at the time such Security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect
to such Security shall have been satisfied in full.
(e) The Liquidated Damages set forth above shall be the exclusive
monetary remedy available to the Holders of Securities that are Transfer
Restricted Securities for each Registration Default.
4. Registration Procedures.
(a) In connection with the Shelf Registration Statement, the Company
shall comply with all the provisions of Section 4(b) hereof and shall use
its reasonable best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities, and pursuant thereto, shall as
expeditiously as possible prepare and file with the Commission a Shelf
Registration Statement relating to the registration on any appropriate form
under the Securities Act.
(b) In connection with the Shelf Registration Statement and any
Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities, the Company shall:
(i) Subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective during
the Effectiveness Period; upon the occurrence of any event that would
cause the Shelf Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted
Securities during the Effectiveness Period, the Company shall file
promptly an appropriate amendment to the Shelf Registration Statement,
a supplement to the Prospectus or a report filed with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, in
the case of clause (A), correcting any such misstatement or omission,
and, in the case of either clause (A) or (B), use its reasonable best
efforts to cause any such amendment to be declared effective and the
Shelf Registration Statement and the related Prospectus to become
usable for their intended purposes as soon as practicable thereafter.
Notwithstanding the foregoing, the Company may suspend the
effectiveness of the Shelf Registration Statement by written notice to
the Holders for a period not to exceed an aggregate of 45 days in any
90-day period (each such period, a "Suspension Period") if:
(x) an event occurs and is continuing as a result of which the
Shelf Registration Statement, the Prospectus, any amendment or
supplement thereto, or any document incorporated by reference therein
would, in the Company's judgment, 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
(y) the Company determines in good faith that the disclosure of
such event at such time could be seriously detrimental to the Company
and its subsidiaries;
provided that, in the event the disclosure relates to a previously
undisclosed proposed or pending material business transaction, the
disclosure of which the Company determines in good faith would be
reasonably likely to impede the Company's ability to consummate such
transaction, the Company may extend a Suspension Period from 45 days to 60
days in any 90-day period; provided, however, that Suspension Periods shall
not exceed an aggregate of 90 days in any 360-day period. The Company shall
not be required to specify in the written notice to the Holders the nature
of the event giving rise to the Suspension Period. Each Holder, by its
acceptance of the Securities, agrees to hold in confidence any
communication by the Company in response to any written notice of a
proposed sale.
(ii) Prepare and file with the Commission such amendments and
post-effective amendments to the Shelf Registration Statement as may
be necessary to keep the Shelf Registration Statement effective during
the Effectiveness Period; cause the Prospectus to be supplemented by
any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully
with the applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all Transfer
Restrict Securities covered by the Shelf Registration Statement during
the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in the Shelf
Registration Statement or supplement to the Prospectus.
(iii) Advise the selling Holders promptly and, if requested by
such selling Holders, to confirm such advice in writing, except as
provided in clause (D) below:
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to the
Shelf Registration Statement or any post-effective amendment
thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the
Shelf Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
under the Securities Act or of the suspension by any state
securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding
purposes, or
(D) of the existence of any fact or the happening of any
event, during the Effectiveness Period, that makes any statement
of a material fact made in the Shelf Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document
incorporated by reference therein untrue, or that requires the
making of any additions to or changes in the Shelf Registration
Statement or the Prospectus in order to make the statements
therein not misleading.
If at any time the Commission shall issue any stop order suspending the
effectiveness of the Shelf Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending
the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
shall use its reasonable best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time and will provide to each Holder
who is named in the Shelf Registration Statement prompt notice of the
withdrawal of any such order.
(iv) Make available at reasonable times for inspection by one or
more representatives of the selling Holders, designated in writing by
a Majority of Holders whose Transfer Restricted Securities are
included in the Shelf Registration Statement, and any attorney or
accountant retained by such selling Holders, all financial and other
records, pertinent corporate documents and properties of the Company
as shall be reasonably necessary to enable them to conduct a
reasonable investigation within the meaning of Section 11 of the
Securities Act, and cause the Company's officers, directors, managers
and employees to supply all information reasonably requested by any
such representative or representatives of the selling Holders,
attorney or accountant in connection therewith; provided, however,
that the Company shall have no obligation to deliver information to
any selling Holder or representative pursuant to this Section 4(b)(iv)
unless such selling Holder or representative shall have executed and
delivered a confidentiality agreement in a form acceptable to the
Company relating to such information.
(v) If requested by any selling Holders, promptly incorporate in
the Shelf Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information
as such selling Holders may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities.
(vi) Furnish to each selling Holder upon their request, without
charge, at least one copy of the Shelf Registration Statement, as
first filed with the Commission, and of each amendment thereto (and
any documents incorporated by reference therein or exhibits thereto
(or exhibits incorporated in such exhibits by reference) as such
Person may request).
(vii) Deliver to each selling Holder, without charge, as many
copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto as such Persons reasonably may
request; subject to any notice by the Company in accordance with this
Section 4(b) of the existence of any fact or event of the kind
described in Section 4(b)(iii)(D), the Company hereby consents to the
use of the Prospectus and any amendment or supplement thereto by each
of the selling Holders in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto.
(viii) Before any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions in the United States as the selling Holders may
reasonably request and do any and all other acts or things necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Shelf Registration
Statement; provided, however, that the Company shall not be required
(A) to register or qualify as a foreign corporation or a dealer of
securities where it is not now so qualified or to take any action that
would subject it to the service of process in any jurisdiction where
it is not now so subject or (B) to subject itself to general or
unlimited service of process or to taxation in any such jurisdiction
if they are not now so subject.
(ix) Cooperate with the selling Holders to facilitate the timely
preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends (unless required by applicable securities laws); and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders may request at least two
Business Days before any sale of Transfer Restricted Securities.
(x) Use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Shelf Registration Statement to
be registered with or approved by such other U.S. governmental
agencies or authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Transfer
Restricted Securities.
(xi) Subject to Section 4(b)(i) hereof, if any fact or event
contemplated by Section 4(b)(iii)(D) hereof shall exist or have
occurred, use its reasonable best efforts to prepare a supplement or
post-effective amendment to the Shelf Registration Statement or
related Prospectus or any document incorporated therein by reference
or file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted 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 in which
they are made, not misleading.
(xii) Provide a CUSIP number for the Securities that are not
Transfer Restricted Securities not later than the effective date of
the Shelf Registration Statement and provide the Trustee under the
Indenture with certificates for the Securities and shares of Common
Stock that are not Transfer Restricted Securities that are in a form
eligible for deposit with The Depository Trust Company.
(xiii) Otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and all
reporting requirements under the rules and regulations of the Exchange
Act.
(xiv) Use reasonable best efforts to cause the Indenture to be
qualified under the TIA not later than the effective date of the Shelf
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the holders of Securities to
effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA;
and execute and use its reasonable best efforts to cause the Trustee
thereunder to execute all documents that may be required to effect
such changes and all other forms and documents required to be filed
with the Commission to enable the Indenture to be so qualified in a
timely manner.
(xv) Use reasonable best efforts to cause all Common Stock
covered by the Shelf Registration Statement to be listed or quoted, as
the case may be, on each securities exchange or automated quotation
system on which Common Stock is then listed or quoted.
(xvi) Provide to each Holder upon written request each document
filed with the Commission pursuant to the requirements of Section 13
and Section 15 of the Exchange Act after the effective date of the
Shelf Registration Statement, unless such document is available
through the Commission's EDGAR system.
(c) Each Holder agrees by acquisition of a Transfer Restricted
Security that, upon receipt of any notice (a "Suspension Notice") from the
Company of the existence of any fact of the kind described in Section
4(b)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the Shelf Registration Statement
until:
(i) such Holder has received copies of the supplemented or
amended Prospectus contemplated by Section 4(b)(xi) hereof; or
(ii) such Holder is advised in writing by the Company that the
use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings that are incorporated by reference
in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer
Restricted Securities that was current at the time of receipt of such
Suspension Notice.
(d) Each Holder agrees, by acquisition of the Transfer Restricted
Securities, that no Holder shall be entitled to sell any of such Transfer
Restricted Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Company
with a Notice and Questionnaire as required pursuant to Section 2(e) hereof
(including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each
Notice Holder agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously
furnished to the Company by such Notice Holder not misleading and any other
information regarding such Notice Holder and the distribution of such
Transfer Restricted Securities as the Company may from time to time
reasonably request in writing. Any sale of any Transfer Restricted
Securities by any Holder shall constitute a representation and warranty by
such Holder that the information relating to such Holder and its plan of
distribution is as set forth in the Prospectus delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating
to or provided by such Holder or its plan of distribution and that such
Prospectus does not as of the time of such sale omit to state any material
fact relating to or provided by such Holder or its plan of distribution
necessary to make the statements in such Prospectus, in the light of the
circumstances under which they were made, not misleading.
5. Registration Expenses.
All expenses incident to the Company's performance of or compliance with
this Agreement shall be borne by the Company regardless of whether a Shelf
Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including
filings made with the NASD);
(ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws;
(iii) all expenses of printing (including printing of
Prospectuses and certificates for the Common Stock to be issued upon
conversion of the Securities) and the Company's expenses for messenger
and delivery services and telephone;
(iv) all fees and disbursements of counsel to the Company;
(v) all application and filing fees in connection with listing
(or authorizing for quotation) the Common Stock on a national
securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees and disbursements of independent certified public
accountants of the Company.
The Company shall bear its internal expenses (including, without
limitation, all salaries and expenses of their officers and employees
performing legal, accounting or other duties), the expenses of any
annual audit and the fees and expenses of any Person, including
special experts, retained by the Company.
6. Indemnification And Contribution.
(a) The Company agrees to indemnify and hold harmless each Holder
(including each Initial Purchaser), its directors, officers, and employees
and each person, if any, who controls any such Holder within the meaning of
the Securities Act or the Exchange Act (each, an "Indemnified Holder"),
against any loss, claim, damage, liability or expense, joint or several, or
any action in respect thereof (including, but not limited to, any loss,
claim, damage, liability or action relating to resales of the Transfer
Restricted Securities), to which such Indemnified Holder may become
subject, insofar as any such loss, claim, damage, liability or action
arises out of, or is based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in (A) the Shelf Registration Statement as
originally filed or in any amendment thereof, in any Prospectus, or in
any amendment or supplement thereto or (B) any blue sky application or
other document or any amendment or supplement thereto prepared or
executed by the Company (or based upon written information furnished
by or on behalf of the Company expressly for use in such blue sky
application or other document or amendment on supplement) filed in any
jurisdiction specifically for the purpose of qualifying any or all of
the Transfer Restricted Securities under the securities law of any
state or other jurisdiction (such application or document being
hereinafter called a "Blue Sky Application"); or
(ii) the omission or alleged omission to state therein 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 agrees to reimburse each Indemnified Holder promptly upon demand for
any legal or other expenses reasonably incurred by such Indemnified Holder
in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
provided, however, that the Company shall not be liable in any such case to
the extent that any such loss, claim, damage, liability or expense arises
out of, or is based upon, any untrue statement or alleged untrue statement
or omission or alleged omission made in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Holder (or its related Indemnified Holder) specifically for use therein.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have.
(b) Each Holder, severally and not jointly, agrees to indemnify and
hold harmless the Company, its directors, officers and employees and each
person, if any, who controls the Company within the meaning of the
Securities Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company to each such Holder, but only with reference to
written information relating to such Holder furnished to the Company by or
on behalf of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement set forth
in this Section shall be in addition to any liabilities which any such
Holder may otherwise have. In no event shall any Holder, its directors,
officers or employees or any person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total
amount received by such Holder with respect to its sale of Transfer
Restricted Securities pursuant to a Shelf Registration Statement exceeds
the amount of any damages that such Holder, its directors, officers or
employees or any person who controls such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 6 except to the extent
it has been materially prejudiced by such failure and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 6. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that the Holders shall have the right to employ a single counsel
to represent jointly the Holders and their directors, officers, employees
and controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Holders against
the Company under this Section 6 if the Holders seeking indemnification
shall have been advised by legal counsel that there may be one or more
legal defenses available to such Holders and their respective directors,
officers, employees and controlling persons that are different from or
additional to those available to the Company, and in that event, the fees
and expenses of such separate counsel shall be paid by the Company.
(d) The indemnifying party under this Section shall not be liable for
any settlement of any proceeding effected without its written consent,
which shall not be withheld unreasonably, but if settled with such consent
or if there is a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party against any loss, claim, damage,
liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by Section 6(c)
hereof, the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement, compromise or consent to the entry of judgment in any
pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could
have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent (x) includes an unconditional release of
such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding and (y) 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.
(e) If the indemnification provided for in this Section 6 shall for
any reason be unavailable or insufficient to hold harmless an indemnified
party under Section 6(a) or 6(b) hereof in respect of any loss, claim,
damage or liability (or action in respect thereof) referred to therein,
each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability (or action in respect
thereof):
(i) in such proportion as is appropriate to reflect the relative
benefits received by the Company from the offering and sale of the
Transfer Restricted Securities on the one hand and a Holder with
respect to the sale by such Holder of the Transfer Restricted
Securities on the other, or
(ii) if the allocation provided by Section 6(d)(i) hereof is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in Section 6(d)(i)
hereof but also the relative fault of the Company on the one hand and
the Holders on the other in connection with the statements or
omissions or alleged statements or alleged omissions that resulted in
such loss, claim, damage or liability (or action in respect thereof),
as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and a Holder
on the other with respect to such offering and such sale shall be deemed to
be in the same proportion as the total net proceeds from the offering of
the Securities purchased under the Purchase Agreement (before deducting
expenses) received by the Company, on the one hand, bear to the total
proceeds received by such Holder with respect to its sale of Transfer
Restricted Securities, on the other. The relative fault of the parties
shall be determined by reference to 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 by or on behalf of the Holders, on the other, the intent of the
parties and their relative knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and each
Holder agree that it would not be just and equitable if the amount of
contribution pursuant to this Section 6(e) were determined by pro rata
allocation or by any other method of allocation that does not take into
account the equitable considerations referred to in the first sentence of
this paragraph (e).
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above in
this Section 6 shall be deemed to include, for purposes of this Section 6, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such
action or claim.
Notwithstanding the provisions of this Section 6, no Holder shall be
required to contribute any amount in excess of the amount by which the total
price at which the Transfer Restricted Securities purchased by it were resold
exceeds the amount of any damages which 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 Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute as provided in this
Section 6(d) are several and not joint.
(f) The provisions of this Section 6 shall remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling persons
referred to in Section 6 hereof, and will survive the sale by a Holder of
Transfer Restricted Securities.
7. Rule 144A and Rule 144. The Company agrees with each Holder, for so long
as any Transfer Restricted Securities remain outstanding and during any period
in which the Company (i) is not subject to Section 13 or 15(d) of the Exchange
Act, to make available, upon request of any Holder, to such Holder or beneficial
owner of Transfer Restricted Securities in connection with any sale thereof and
any prospective purchaser of such Transfer Restricted Securities designated by
such Holder or beneficial owner, the information required by Rule 144A(d)(4)
under the Securities Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
8. No Participation In Underwritten Registrations. No Holder may
participate in any Underwritten Registration hereunder.
9. Miscellaneous.
(a) Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Section 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 Section 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) Actions Affecting Transfer Restricted Securities. The Company
shall not, directly or indirectly, take any action with respect to the
Transfer Restricted Securities as a class that would adversely affect the
ability of the Holders to include such Transfer Restricted Securities in a
registration undertaken pursuant to this Agreement.
(c) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, 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. In addition, the Company shall not
grant to any of its securityholders (other than the Holders in such
capacity) the right to include any of its securities in the Shelf
Registration Statement provided for in this Agreement other than the
Transfer Restricted Securities.
(d) Amendments and Waivers. This Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of a Majority of Holders; provided, however, that with
respect to any matter that directly or indirectly adversely affects the
rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of each such Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to depart from the provisions hereof, with respect to a matter,
which relates exclusively to the rights of Holders whose securities are
being sold pursuant to a Shelf Registration Statement and does not directly
or indirectly adversely affect the rights of other Holders, may be given by
the Majority Holders, determined on the basis of Securities or Common Stock
being sold rather than registered under such Shelf Registration Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, first class
mail (registered or certified, return receipt requested), telex, facsimile
transmission, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the registrar under the Indenture or the transfer agent of the Common
Stock, as the case may be; and
(ii) if to the Company, initially at its address set forth in the
Purchase Agreement,
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if transmitted by
facsimile; and on the next Business Day, if timely delivered to an air courier
guaranteeing overnight delivery.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express
assignment, subsequent Holders. The Company hereby agrees to extend the
benefit of this Agreement to any Holder and any such Holder may
specifically enforce the provisions of this Agreement as if an original
party hereto.
(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) Transfer Restricted Securities Held by the Company or Their
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Transfer Restricted Securities is required hereunder,
Transfer Restricted Securities held by the Company or its Affiliates (other
than subsequent Holders if such subsequent Holders are deemed to be
Affiliates solely by reason of their holding of such Transfer Restricted
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(k) 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, it being
intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.
(l) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration rights granted
by the Company with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
DST SYSTEMS, INC.
By: /s/ Kenneth V. Hager
-------------------------------------------
Name: Kenneth V. Hager
Title: Vice President, Chief Financial
Officer and Treasurer
CITIGROUP GLOBAL MARKETS INC.
BANC OF AMERICA SECURITIES LLC
Acting as Representatives of the
several Initial Purchasers named in
Schedule I to the Purchase Agreement.
By: CITIGROUP GLOBAL MARKETS INC.
By: /s/ Guy Seebohm
---------------------------------
Name: Guy Seebohm
Title: Vice President