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EXHIBIT 10.1
EXECUTION COPY
GEORGIA-PACIFIC CORPORATION
$500,000,000 8% SENIOR NOTES DUE 2024
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
December 11, 2003
Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc.,
UBS Securities LLC,
As representatives of the
several Purchasers
named in Schedule I to the
Purchase Agreement
c/o
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Georgia-Pacific Corporation, a Georgia corporation (the
"Company"),
proposes to issue and sell to the
Purchasers (as defined herein) upon the terms
set forth in the Purchase Agreement (as
defined herein) its 8% Senior Notes due
2024 (the "Notes"). As an inducement to the
Purchasers to enter into the
Purchase Agreement and in satisfaction of a
condition to the obligations of the
Purchasers thereunder, the Company agrees
with the Purchasers for the benefit of
Holders (as defined herein) from time to
time of the Registrable Securities (as
defined herein) as follows:
1.
Certain Definitions. For purposes of this Exchange and
Registration Rights Agreement, the
following terms shall have the following
respective meanings:
"Base Interest" shall mean the interest that would otherwise accrue
on
the Securities under the terms thereof and
the Indenture, without giving effect
to the provisions of this Exchange and
Registration Rights Agreement.
"Broker-dealer" shall mean any broker or dealer registered with
the
Commission under the Exchange Act.
"Closing Date" shall mean the date on which the Notes are
initially
issued.
"Commission" shall mean the United States Securities and
Exchange
Commission, or any other federal agency at
the time administering the Exchange
Act or the Securities Act, whichever is the
relevant statute for the particular
purpose.
"Effective Time," in the case of (i) an Exchange Registration,
shall
mean the time and date as of which the
Commission declares the Exchange
Registration Statement effective or as of
which the Exchange Registration
Statement otherwise becomes effective and
(ii) a Shelf
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Registration, shall mean the time and date
as of which the Commission declares
the Shelf Registration Statement effective
or as of which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" shall mean any Holder of Registrable Securities
that
has returned a completed and signed Notice
and Questionnaire to the Company in
accordance with Section 3(d)(ii)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any
successor thereto, as the same shall be
amended from time to time.
"Exchange Offer" shall have the meaning assigned thereto in
Section
2(a) hereof.
"Exchange Registration" shall have the meaning assigned thereto
in
Section 3(c) hereof.
"Exchange Registration Statement" shall have the meaning
assigned
thereto in Section 2(a) hereof.
"Exchange Securities" shall have the meaning assigned thereto
in
Section 2(a) hereof.
"Holder" shall mean each of the Purchasers and other Persons
who
acquire Registrable Securities from time to
time (including any successors or
assigns), in each case for so long as such
Person owns any Registrable
Securities.
"Indenture" shall mean the Indenture, dated as of December 11,
2003,
between the Company and The Bank of New
York, as trustee, pursuant to which the
Notes are being issued, as the same shall
be amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement
and
Selling Securityholder Questionnaire
substantially in the form of Exhibit A
hereto.
"Person" shall mean a corporation, association, partnership,
limited
liability company, organization, business,
individual, government or political
subdivision thereof or governmental
agency.
"Purchase Agreement" shall mean the Purchase Agreement, dated
December
4, 2003, among the Purchasers and the
Company, relating to the Notes.
"Purchasers" shall mean the Purchasers named in Schedule I to
the
Purchase Agreement.
"Registrable Securities" shall mean the Securities; provided,
however,
that a Security shall cease to be a
Registrable Security when (i) in the
circumstances contemplated by Section 2(a)
hereof, the Security has been
exchanged for an Exchange Security in an
Exchange Offer as contemplated in
Section 2(a) hereof (provided that any
Exchange Security that, pursuant to the
last two sentences of Section 2(a) hereof,
is included in a prospectus for use
in connection with resales by
Broker-dealers shall be deemed to be a Registrable
Security with respect to Sections 5, 6 and
9 hereof until resale of such
Registrable Security has been effected
within the 180-day period referred to in
Section 2(a) hereof); (ii) in the
circumstances contemplated by Section 2(b)
hereof, a Shelf Registration Statement
registering such Security under the
Securities Act has been declared or becomes
effective and such Security has been
sold or
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otherwise transferred by the Holder thereof
pursuant to and in a manner
contemplated by such effective Shelf
Registration Statement; (iii) such Security
is sold pursuant to Rule 144 under
circumstances in which any legend borne by
such Security relating to restrictions on
transferability thereof, under the
Securities Act or otherwise, is removed by
the Company or pursuant to the
Indenture; (iv) such Security is eligible
to be sold pursuant to paragraph (k)
of Rule 144; or (v) such Security shall
cease to be outstanding.
"Registration Default" shall have the meaning assigned thereto
in
Section 2(c) hereof.
"Registration Expenses" shall have the meaning assigned thereto
in
Section 4 hereof.
"Resale Period" shall have the meaning assigned thereto in Section
2(a)
hereof.
"Restricted Holder" shall mean (i) a Holder that is an affiliate of
the
Company within the meaning of Rule 405;
(ii) a Holder who acquires Exchange
Securities outside the ordinary course of
such Holder's business; (iii) a Holder
who has arrangements or understandings with
any Person to participate in the
Exchange Offer for the purpose of
distributing Exchange Securities; and (iv) a
Holder that is a Broker-dealer, but only
with respect to Exchange Securities
received by such Broker-dealer pursuant to
the Exchange Offer in exchange for
Registrable Securities acquired by the
Broker-dealer directly from the Company.
"Rule 144," "Rule 405" and "Rule 415" shall mean, in each case,
such
rule as promulgated under the Securities
Act (or any successor provision), as
the same shall be amended from time to
time.
"Securities" shall mean, collectively, the Notes of the Company to
be
issued and sold to the Purchasers, and
securities issued in exchange therefor or
in lieu thereof pursuant to the
Indenture.
"Securities Act" shall mean the Securities Act of 1933, or any
successor thereto, as the same shall be
amended from time to time.
"Shelf Registration" shall have the meaning assigned thereto in
Section
2(b) hereof.
"Shelf Registration Statement" shall have the meaning assigned
thereto
in Section 2(b) hereof.
"Special Interest" shall have the meaning assigned thereto in
Section
2(c) hereof.
"Trustee" shall mean trustee under the Indenture and the trustee
(if
any) under any indenture governing the
Exchange Securities.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939,
or
any successor thereto, and the rules,
regulations and forms promulgated
thereunder, all as the same shall be
amended from time to time.
Unless the context otherwise requires, any reference herein to
a
"Section" or "clause" refers to a Section
or clause, as the case may be, of this
Exchange and Registration Rights Agreement,
and the words "herein," "hereof" and
"hereunder" and other words of similar
import refer to this Exchange and
Registration Rights Agreement as a whole
and not to any particular Section or
other subdivision.
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2.
Registration Under the Securities Act.
(a) Except as
set forth in Section 2(b) below, the
Company agrees to file under the Securities Act, as soon as
practicable, but no later than 90 days after the Closing Date,
a
registration statement relating to an offer to exchange (such
registration statement, the "Exchange Registration Statement", and
such
offer, the "Exchange Offer") any and all of the Notes for a
like
aggregate principal amount of debt securities issued by the
Company,
which debt securities are substantially identical to the
Securities
(and are entitled to the benefits of a trust indenture which is
substantially identical to the Indenture, or is the Indenture,
and
which has been qualified under the Trust Indenture Act), except
that
such new debt securities have been registered pursuant to an
effective
registration statement under the Securities Act and do not
contain
provisions for the additional interest contemplated in Section
2(c)
below (such new debt securities hereinafter called "Exchange
Securities"). The Company agrees to use its reasonable best efforts
to
cause the Exchange Registration Statement to become effective under
the
Securities Act as soon as practicable, but no later than 180 days
after
the Closing Date. The Exchange Offer will be registered under
the
Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange
Act.
The Company further agrees to use its reasonable best efforts
to
commence and complete the Exchange Offer promptly, but no later
than 30
business days (or such longer period as may be required by
federal
securities law) after the Effective Time of such Exchange
Registration
Statement, hold the Exchange Offer open for at least 20 business
days
and exchange Exchange Securities for all Registrable Securities
that
have been properly tendered and not withdrawn on or prior to
the
expiration of the Exchange Offer. The Exchange Offer will be deemed
to
have been "completed" only if the Exchange Securities received
by
Holders other than Restricted Holders in the Exchange Offer for
Registrable Securities are, upon receipt, transferable by each
such
Holder without restriction under the Securities Act and the
Exchange
Act and without material restrictions under the blue sky or
securities
laws of a substantial majority of the States of the United States
of
America. The Exchange Offer shall be deemed to have been completed
upon
the earlier to occur of (i) the Company having exchanged the
Exchange
Securities for all outstanding Registrable Securities pursuant to
the
Exchange Offer and (ii) the Company having exchanged, pursuant to
the
Exchange Offer, Exchange Securities for all Registrable Securities
that
have been properly tendered and not withdrawn before the expiration
of
the Exchange Offer, which shall be on a date that is not less than
20
business days following the commencement of the Exchange Offer.
The
Company agrees (x) to include in the Exchange Registration
Statement a
prospectus for use in any resales by any Holder of Exchange
Securities
that is a Broker-dealer and (y) to keep such Exchange
Registration
Statement effective for a period (the "Resale Period") beginning at
the
Effective Time of such Exchange Registration Statement and ending
upon
the earlier of the expiration of the 180th day after the Exchange
Offer
has been completed or such time as such Broker-dealers no longer
own
any Registrable Securities. With respect to such Exchange
Registration
Statement, such Holders shall have the benefit of the rights of
indemnification and contribution set forth in Sections 6(a), (c),
(d)
and (e) hereof.
(b) If (i) the
Company is not required to file the
Exchange Registration Statement, (ii) the Company is not permitted
to
consummate the Exchange Offer because it is not permitted by
applicable
law or Commission policy, or (iii) any Holder of Registrable
Securities
provides written notice to the Company at any time prior to the
20th
day following the consummation of the Exchange Offer that (A)
such
Holder is
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prohibited under applicable law or under the rules, regulations
or
policies of the Commission from participating in the Exchange
Offer,
(B) it may not resell Exchange Securities acquired by such Holder
in
the Exchange Offer without delivering a prospectus and the
prospectus
contained in the Exchange Registration Statement is not appropriate
or
available for such resale, or (C) it is a Broker-dealer and it
holds
securities acquired directly from the Company or an affiliate of
the
Company, the Company shall, in lieu of (or, in the case of
clause
(iii), in addition to) conducting the Exchange Offer contemplated
by
Section 2(a) hereof, file under the Securities Act as soon as
practicable, but no later than 60 days after the time such
obligation
to file arises, a "shelf" registration statement under the
Securities
Act providing for the registration of, and the sale on a continuous
or
delayed basis by the Holders of, all of the Registrable
Securities,
pursuant to Rule 415 or any similar rule that may be adopted by
the
Commission (such filing, the "Shelf Registration" and such
registration
statement, the "Shelf Registration Statement"). The Company agrees
to
use its reasonable best efforts to cause the Shelf Registration
Statement to become or be declared effective no later than 150
days
after the obligation to file such Shelf Registration Statement
arises
and, subject to Section 2(f) hereof, to keep such Shelf
Registration
Statement continuously effective for a period ending on the earlier
of
the second anniversary of the Effective Time or such time as
any
Registrable Securities registered under the Shelf Registration
Statement cease to be Registrable Securities as defined in this
Exchange and Registration Rights Agreement, provided, however, that
no
Holder shall be entitled to be named as a selling securityholder in
the
Shelf Registration Statement or to use the prospectus forming a
part
thereof for resales of Registrable Securities unless such Holder is
an
Electing Holder. Subject to Section 2(f) hereof, the Company
further
agrees to supplement or make amendments to the Shelf
Registration
Statement, as and when required by the rules, regulations or
instructions applicable to the registration form used by the
Company
for such Shelf Registration Statement or by the Securities Act or
rules
and regulations thereunder for shelf registration, and the
Company
agrees to furnish to each Electing Holder copies of any such
supplement
or amendment prior to its being used or promptly following its
filing
with the Commission.
(c) In the
event that (i) the Company has not filed the
Exchange Registration Statement or Shelf Registration Statement on
or
before the date on which such registration statement is required to
be
filed pursuant to Section 2(a) or 2(b) hereof, respectively, or
(ii)
such Exchange Registration Statement or Shelf Registration
Statement
has not become effective or been declared effective by the
Commission
on or before the date on which such registration statement is
required
to become or be declared effective pursuant to Section 2(a) or
2(b)
hereof, respectively, or (iii) the Exchange Offer has not been
completed within 30 business days after the Effective Time of
the
Exchange Registration Statement relating to the Exchange Offer (if
the
Exchange Offer is then required to be made) or (iv) any
Exchange
Registration Statement or Shelf Registration Statement required
by
Section 2(a) or 2(b) hereof is filed and declared effective but
shall
thereafter either be withdrawn by the Company or shall become
subject
to an effective stop order issued pursuant to Section 8(d) of
the
Securities Act suspending the effectiveness of such
registration
statement (except as specifically permitted herein) without
being
succeeded immediately by an additional registration statement filed
and
declared effective (each such event referred to in clauses (i)
through
(iv), a "Registration Default" and each period during which a
Registration Default has occurred and is continuing, a
"Registration
Default Period"), then, as liquidated damages for such
Registration
Default, subject to the provisions of Section 9(b) hereof,
special
interest ("Special Interest"), in addition to the Base
Interest,
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shall accrue at a per annum rate of 0.25% for the first 90 days of
the
Registration Default Period, at a per annum rate of 0.50% for
the
second 90 days of the Registration Default Period, at a per annum
rate
of 0.75% for the third 90 days of the Registration Default Period
and
at a per annum rate of 1.0% thereafter for the remaining portion of
the
Registration Default Period. The maximum per annum rate of
Special
Interest for all Registration Defaults shall be 1.0%.
(d)
The
Company shall take all actions necessary to
ensure that the transactions contemplated herein are effected as
so
contemplated.
(e) Any
reference herein to a registration statement as
of any time shall be deemed to include any document incorporated,
or
deemed to be incorporated, therein by reference as of such time and
any
reference herein to any post-effective amendment to a
registration
statement as of any time shall be deemed to include any
document
incorporated, or deemed to be incorporated, therein by reference as
of
such time.
(f)
Notwithstanding any other provisions of this Exchange
and Registration Rights Agreement (but subject to the further
provisions of this Section 2(f)), the Company may for valid
business
reasons, including, without limitation, a potential
acquisition,
divestiture of assets or other material corporate event or
transaction,
issue a notice to Holders of Registrable Securities registered
under
any Shelf Registration Statement that such Shelf Registration
Statement
is no longer effective or that the prospectus included therein is
no
longer usable
for offers and sales of Registrable Securities covered by
the Shelf Registration Statement and may issue any notice
suspending
use of the Shelf Registration Statement required under applicable
law
to be issued; provided that the use of the Shelf Registration
Statement
shall not be suspended for more than 45 days in the aggregate in
any
consecutive 12-month period.
3.
Registration Procedures.
If the Company files a registration statement pursuant to Section
2(a)
or Section 2(b) hereof, the following
provisions shall apply:
(a) At or
before the Effective Time of the Exchange
Registration Statement or the Shelf Registration Statement, as the
case
may be, the Company shall qualify the Indenture under the Trust
Indenture Act.
(b) In the
event that such qualification would require
the appointment of a new trustee under the Indenture, the Company
shall
appoint a new trustee thereunder pursuant to the applicable
provisions
of the Indenture.
(c) In
connection with the Company's obligations with
respect to the registration of Exchange Securities as contemplated
by
Section 2(a) hereof (the "Exchange Registration"), if applicable,
the
Company shall, as soon as practicable (or as otherwise
specified):
(i) prepare
and file with the Commission, no
later than 90 days after the Closing Date, an Exchange
Registration Statement on any form which may be utilized by
the Company and which shall permit the Exchange Offer and
resales of Exchange Securities by Broker-dealers during the
Resale Period to be effected as contemplated by Section 2(a)
hereof, and use its reasonable best
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efforts to cause such Exchange Registration Statement to
become effective no later than 180 days after the Closing
Date;
(ii)
prepare and file with the Commission such
amendments and supplements to such Exchange Registration
Statement and the prospectus included therein as may be
necessary to effect and maintain the effectiveness of such
Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) hereof and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Exchange
Registration Statement, and promptly provide each
Broker-dealer holding Exchange Securities with such number of
copies of the prospectus included in the Exchange Registration
Statement (as then amended or supplemented), in conformity in
all material respects with the requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations
of the Commission thereunder, as such Broker-dealer reasonably
may request prior to the expiration of the Resale Period, for
use in connection with resales of Exchange Securities;
(iii)
promptly notify each Broker-dealer that has
requested or received copies of the prospectus included in
such Exchange Registration Statement, and confirm such advice
in writing, (A) when such Exchange Registration Statement or
the
prospectus included therein or any prospectus amendment or
supplement or post effective amendment has been filed, and,
with respect to such Exchange Registration Statement or any
post effective amendment, when the same has become effective,
(B) of any request by the Commission for amendments or
supplements to such Exchange Registration Statement or
prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the
effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the
Company contemplated by Section 5 hereof cease to be true and
correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) at any time during the
Resale Period when a prospectus is required to be delivered
under the Securities Act, that such Exchange Registration
Statement, prospectus, prospectus amendment or supplement or
post effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder or contains an untrue statement of a
material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances then existing, not misleading;
(iv)
in the event that the Company would be
required, pursuant to Section 3(c)(iii)(B) or (F) above, to
notify any Broker-dealers holding Exchange Securities,
promptly prepare and furnish to each such Holder a reasonable
number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to purchasers of such Exchange
Securities during the Resale Period, such prospectus shall
conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder and
shall not contain an untrue
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statement of a material fact or omit to state a material fact
necessary to make the statements therein, in light of the
circumstances then existing, not misleading;
(v) use its
reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such Exchange Registration Statement or any post effective
amendment thereto at the earliest practicable date;
(vi)
use its reasonable best efforts to (A)
register or qualify the Exchange Securities under the
securities laws or blue sky laws of such jurisdictions as are
contemplated by Section 2(a) hereof no later than the
commencement of the Exchange Offer, (B) keep such
registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of
the Resale Period and (C) take any and all other actions as
may be reasonably necessary or advisable to enable each
Broker-dealer holding Exchange Securities to consummate the
disposition thereof in such jurisdictions; provided, however,
that the Company shall not be required for any such purpose to
(1) qualify as a foreign corporation or be subject to taxation
in any jurisdiction wherein it would not otherwise be required
to qualify or be subject to taxation but for the requirements
of this Section 3(c)(vi), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by laws or any agreement
between it and its shareholders;
(vii) use
its reasonable best efforts to obtain
the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be
required to effect the Exchange Registration, the Exchange
Offer and the offering and sale of Exchange Securities by
Broker-dealers during the Resale Period;
(viii) provide a
CUSIP number for all Exchange
Securities, not later than the Effective Time of the Exchange
Registration Statement;
(ix)
comply with all applicable rules and
regulations of the Commission, and make generally available to
its securityholders as soon as practicable but no later than
eighteen months after the Effective Time of such Exchange
Registration Statement, an earning statement of the Company
and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule
158 thereunder).
(d) In
connection with the Company's obligations with
respect to the Shelf Registration, if applicable, the Company
shall, as
soon as practicable (or as otherwise specified):
(i) prepare
and file with the Commission, within
the time periods specified in Section 2(b) hereof, a Shelf
Registration Statement on any form which may be utilized by
the Company and which shall register all of the Registrable
Securities for resale by the Holders thereof in accordance
with such method or methods of disposition as may be specified
by such of the Holders as, from time to time, may be Electing
Holders and use its reasonable best efforts to cause such
Shelf Registration Statement to become effective within the
time periods specified in Section 2(b) hereof;
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(ii)
not less than 30 calendar days prior to the
Effective Time of the Shelf Registration Statement, mail the
Notice and Questionnaire to the Holders of Registrable
Securities registered under the Shelf Registration Statement;
no Holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement as of the
Effective Time, and no Holder shall be entitled to use the
prospectus forming a part thereof for resales of Registrable
Securities at any time, unless such Holder has returned a
completed and signed Notice and Questionnaire to the Company
by the deadline for response set forth therein; provided,
however, Holders of Registrable Securities shall have at least
28 calendar days from the date on which the Notice and
Questionnaire is first mailed to such Holders to return a
completed and signed Notice and Questionnaire to the Company;
(iii)
as soon as
practicable prepare and file with
the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as
may be necessary to effect and maintain the effectiveness of
such Shelf Registration Statement for the period specified in
Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions
applicable to the form of such Shelf Registration Statement,
and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its
being used or filed with the Commission;
(iv)
comply with the provisions of the Securities
Act with respect to the disposition of all of the Registrable
Securities covered by such Shelf Registration Statement in
accordance with the intended methods of disposition by the
Electing Holders provided for in such Shelf Registration
Statement;
(v) provide
(A) the Electing Holders, (B) the
underwriters (which term, for purposes of this Exchange and
Registration Rights Agreement, shall include a Person deemed
to be an underwriter within the meaning of Section 2(a)(11) of
the Securities Act), if any, thereof, (C) any sales or
placement agent therefor, (D) counsel for any such underwriter
or agent and (E) not more than one counsel for all the
Electing Holders the opportunity to participate in the
preparation of such Shelf Registration Statement, each
prospectus included therein or filed with the Commission and
each amendment or supplement thereto;
(vi)
for a reasonable period prior to the filing
of such Shelf Registration Statement, and throughout the
period specified in Section 2(b) hereof, make available at
reasonable times at the Company's principal place of business
or such other reasonable place for inspection by the Persons
referred to in Section 3(d)(v) hereof who shall certify in
writing to the Company that they have a current intention to
sell the Registrable Securities pursuant to the Shelf
Registration Statement such financial and other information
and books and records of the Company, and cause the officers,
employees, counsel and independent certified public
accountants of the Company to respond to such inquiries, as
shall be reasonably necessary, in the judgment of the
respective counsel referred to in 3(d)(v) hereof, to conduct a
reasonable investigation within the meaning of Section 11 of
the Securities Act; provided, however, that each such party
shall be required to maintain in confidence and not to
disclose to any other Person any information or records
reasonably designated by the Company as being
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confidential, until such time as (A) such information becomes
a matter of public record (whether by virtue of its inclusion
in such registration statement or otherwise (other than a
disclosure by any such Person)), or (B) such Person shall be
required so to disclose such information pursuant to a
subpoena or order of any court or other governmental agency or
body having jurisdiction over the matter (subject to the
requirements of such order, and only after such Person shall
have given the Company prompt prior written notice of such
requirement), or (C) such information is required to be set
forth in such Shelf Registration Statement or the prospectus
included therein or in an amendment to such Shelf Registration
Statement or an amendment or supplement to such prospectus in
order that such Shelf Registration Statement, prospectus,
amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the
rules and regulations of the Commission and does not contain
an untrue statement of a material fact or omit to state
therein a material fact necessary to make the statements
therein, in light of the circumstances then existing, not
misleading;
(vii)
promptly notify each of the Electing
Holders, any sales or placement agent therefor and any
underwriter thereof (which notification may be made through
any managing underwriter that is a representative of such
underwriter for such purpose) and confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post effective amendment has been filed, and,
with respect to such Shelf Registration Statement or any post
effective amendment, when the same has become effective, (B)
of any request by the Commission for amendments or supplements
to such Shelf Registration Statement or prospectus or for
additional information, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Shelf
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the
representations
and warranties of the Company contemplated by
Section 3(d)(xvi) or Section 5 hereof cease to be true and
correct in all material respects, (E) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (F) if at any time when a
prospectus is required to be delivered under the Securities
Act, that such Shelf Registration Statement, prospectus,
prospectus amendment or supplement or post effective amendment
does not conform in all material respects to the applicable
requirements of the Securities Act and the Trust Indenture Act
and the rules and regulations of the Commission thereunder or
contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements
therein, in light of the circumstances then existing, not
misleading;
(viii) use its
reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of
such registration statement or any post effective amendment
thereto at the earliest practicable date;
(ix)
if requested by any managing underwriter or
underwriters, any placement or sales agent or any Electing
Holder, promptly incorporate in a prospectus supplement or
post effective amendment such information as is required by
the applicable rules and regulations of the Commission and as
such
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managing underwriter or underwriters, such agent or such
Electing Holder specifies should be included therein relating
to the terms of the sale of such Registrable Securities,
including information with respect to the principal amount of
Registrable Securities being sold by such Electing Holder or
agent or to any underwriters, the name and description of such
Electing Holder, agent or underwriter, the offering price of
such Registrable Securities and any discount, commission or
other compensation payable in respect thereof, the purchase
price being paid therefor by such underwriters and with
respect to
any other terms of the offering of the Registrable
Securities to be sold by such Electing Holder or agent or to
such underwriters; and make all required filings of such
prospectus supplement or post effective amendment promptly
after notification of the matters to be incorporated in such
prospectus supplement or post effective amendment;
(x) furnish to
each Electing Holder, each
placement or sales agent, if any, therefor, each underwriter,
if any, thereof and the respective counsel referred to in
Section 3(d)(v) hereof an executed copy (or, in the case of an
Electing Holder, a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each
case including all exhibits thereto (in the case of an
Electing Holder of Registrable Securities, upon written
request) and documents incorporated by reference therein) and
such number of copies of such Shelf Registration Statement
(excluding exhibits thereto and documents incorporated by
reference therein unless specifically so requested by such
Electing Holder, agent or underwriter, as the case may be) and
of the prospectus included in such Shelf Registration
Statement (including each preliminary prospectus and any
summary prospectus), in conformity in all material respects
with the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, and such other documents, as such
Electing Holder, agent, if any, and underwriter, if any, may
reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such
Electing Holder, offered or sold by such agent or underwritten
by such underwriter and to permit such Electing Holder, agent
and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and subject to Section
2(f), the Company hereby consents to the use of such
prospectus (including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such Electing
Holder and by any such agent and underwriter, in each case in
the form most recently provided to such Person by the Company,
in connection with the offering and sale of the Registrable
Securities covered by the prospectus (including such
preliminary and summary prospectus) or any supplement or
amendment thereto;
(xi)
use its reasonable best efforts to (A)
register or qualify the Registrable Securities to be included
in such Shelf Registration Statement under such securities
laws or blue sky laws of such jurisdictions as any Electing
Holder and each placement or sales agent, if any, therefor and
underwriter, if any, thereof shall reasonably request, (B)
keep such
registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the
period the Shelf Registration Statement is required to remain
effective under Section 2(b) above and for so long as may be
necessary to enable any such Electing Holder, agent or
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<PAGE>
underwriter to complete its distribution of Securities
pursuant to such Shelf Registration Statement and (C) take any
and all other actions as may be reasonably necessary or
advisable to enable each such Electing Holder, agent, if any,
and underwriter, if any, to consummate the disposition in such
jurisdictions of such Registrable Securities; provided,
however, that the Company shall not be required for any such
purpose to (1) qualify as a foreign corporation or be subject
to taxation in any jurisdiction wherein it would not otherwise
be required to qualify or be subject to taxation but for the
requirements of this Section 3(d)(xi), (2) consent to general
service of process in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by laws or any
agreement between it and its shareholders;
(xii) use
its reasonable best efforts to obtain
the consent o
