ALLIED WASTE NORTH AMERICA, INC.
$600,000,000
7 1 / 4 %
SENIOR NOTES DUE 2015
REGISTRATION RIGHTS AGREEMENT
Dated as of March 9, 2005
This Registration
Rights Agreement (this “ Agreement ”) is
made and entered into as of March 9, 2005, by and among Allied
Waste North America, Inc., a Delaware corporation (the “
Company ”), Allied Waste Industries Inc., a
Delaware corporation (the “ Parent Guarantor
”), each of the entities listed on Schedule A hereto
(each, including the Parent Guarantor, a “
Guarantor ” and, collectively, the “
Guarantors ”), and J.P. Morgan Securities Inc.,
UBS Securities LLC, Credit Suisse First Boston LLC, Wachovia
Capital Markets, LLC, Banc of America Securities LLC, BNP Paribas
Securities Corp., Calyan Securities (USA) and Scotia Capital
(USA) Inc. (each, an “ Initial Purchaser
” and, collectively, the “ Initial
Purchasers ”), each of whom has agreed to purchase
the Company’s 7 1 / 4
% Senior Notes due 2015 (the “
Series A Notes ”) pursuant to the Purchase
Agreement (as defined below).
This Agreement is
made pursuant to the Purchase Agreement, dated March 3, 2005
(the “ Purchase Agreement ”), by and
among the Company, the Guarantors and the Initial Purchasers. In
order to induce the Initial Purchasers to purchase the
Series A Notes, the Company has agreed to provide the
registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the
Initial Purchasers under the Purchase Agreement. Capitalized terms
used herein and not otherwise defined shall have the meaning
assigned to them in the sixteenth series supplement (the “
Sixteenth Supplemental Indenture dated March 9,
2005, to the Indenture dated December 23, 1998, among the
Company, the Guarantors and U.S. Bank National Association, as
Trustee (the “ Trustee ”), relating to
the Notes (the “ Base Indenture ” and,
together with the Sixteenth Supplemental Indenture, the “
Indenture ”).
The
parties hereby agree as follows:
1 DEFINITIONS
As
used in this Agreement, the following capitalized terms shall have
the following meanings:
Act : The Securities Act of 1933, as
amended.
Business Day : Any day except a Saturday, Sunday or
other day in the City of New York, or in the city of the corporate
trust office of the Trustee, on which banks are authorized to
close.
Broker-Dealer : Any broker or dealer registered under
the Exchange Act.
Certificated Securities : As defined in the
Indenture.
Closing Date : The date hereof.
Commission : The Securities and Exchange
Commission.
Consummate : An Exchange Offer shall be deemed
“Consummated” for purposes of this Agreement upon the
occurrence of (a) the filing and effectiveness under the Act
of the Exchange Offer Registration Statement relating to the
Series B Notes to be issued in the Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less
than the period required pursuant to Section 3(b) hereof and
(c) the delivery by the Company to the Registrar under the
Indenture of Series B
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Notes in the same aggregate
principal amount as the aggregate principal amount of Series A
Notes tendered by Holders thereof pursuant to the Exchange
Offer.
Consummation Deadline : As defined in Section 3(b)
hereof.
Effectiveness Deadline : As defined in Sections 3(a)
hereof.
Electing Holder : Any holder of Series A Notes
that has supplied the information requested by the Company in
accordance with Section 4(b).
Exchange Act : The Securities Exchange Act of 1934,
as amended.
Exchange Offer : The exchange and issuance by the
Company of a principal amount of Series B Notes (which shall
be registered pursuant to the Exchange Offer Registration
Statement) equal to the outstanding principal amount of
Series A Notes that are tendered by such Holders in connection
with such exchange and issuance.
Exchange Offer Registration Statement : The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Exempt Resales : The transactions in which the
Initial Purchasers propose to sell the Series A Notes
(i) to certain “qualified institutional buyers,”
as such term is defined in Rule 144A under the Act, or
(ii) outside the United States in reliance upon
Regulation S under the Act to non-U.S. persons.
Filing Deadline : As defined in Section 3(a)
hereof.
Holder : As defined in Section 2
hereof.
Notes : The Series A Notes and the Series B
Notes.
Prospectus : The prospectus included in a
Registration Statement at the time such Registration Statement is
declared effective, 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.
Recommencement Date : As defined in Section 6(d)
hereof.
Registration Default : As defined in Section 5
hereof.
Registration Statement : Any registration statement
of the Company and the Guarantors relating to (a) an offering
of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each
case, (i) which is filed pursuant to the provisions of this
Agreement and (ii) including the Prospectus included therein,
all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Regulation S : Regulation S promulgated
under the Act.
Rule 144 : Rule 144 promulgated under the
Act.
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Series B Notes : The Company’s 7
1 / 4
% Series B Senior Notes due
2015 to be issued pursuant to the Indenture (i) in the
Exchange Offer or (ii) as contemplated by Section 4
hereof.
Shelf Effectiveness Deadline : As defined in Section
4(a) hereof.
Shelf Filing Deadline : As defined in Section 4(a)
hereof.
Shelf Registration Statement : As defined in Section
4(a) hereof.
Suspension Notice : As defined in Section 6(d)
hereof.
TIA : The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date of the
Indenture.
Transfer Restricted Securities : Each
(A) Series A Note, until the earliest to occur of
(i) the date on which such Series A Note is exchanged in
the Exchange Offer for a Series B Note which is entitled to be
resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Act, (ii) the date
on which such Series A Note has been disposed of in accordance
with a Shelf Registration Statement (and the purchasers thereof
have been issued Series B Notes), or (iii) the date on
which such Series A Note is distributed to the public pursuant
to Rule 144 under the Act and (B) Series B Note held
by a Broker-Dealer until the date on which such Series B Note
is disposed of by a Broker-Dealer pursuant to the “Plan of
Distribution” contemplated by the Exchange Offer Registration
Statement (including the delivery of the Prospectus contained
therein).
2 HOLDERS
A
Person is deemed to be a holder of Transfer Restricted Securities
(each, a “ Holder ”) whenever such Person
owns Transfer Restricted Securities.
3 REGISTERED EXCHANGE
OFFER
(a) Unless
the Exchange Offer shall not be permitted by applicable federal law
(after the procedures set forth in Section 6(a)(i) below have
been complied with), the Company and the Guarantors shall
(i) cause the Exchange Offer Registration Statement to be
filed with the Commission as soon as practicable after the Closing
Date, but in no event later than 120 days after the Closing
Date (such 120th day being the “ Filing
Deadline ”), (ii) use their respective
reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in
no event later than 210 days after the Closing Date (such
210th day being the “ Effectiveness Deadline
”), (iii) in connection with the foregoing,
(A) file all pre-effective amendments to such Exchange Offer
Registration Statement as may be necessary in order to cause it to
become effective, (B) file, if applicable, a post-effective
amendment to such Exchange Offer Registration Statement pursuant to
Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, use
their respective reasonable best efforts to commence and Consummate
the Exchange Offer. The Exchange Offer shall be on the appropriate
form permitting (i) registration of the Series B Notes to
be offered in exchange for the Series A Notes that are
Transfer Restricted Securities and (ii) resales
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of Series B Notes by
Broker-Dealers that tendered into the Exchange Offer Series A
Notes that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities
(other than Series A Notes acquired directly from the Company
or any of its Affiliates) as contemplated by Section 3(c)
below.
(b) The
Company and the Guarantors shall use their respective reasonable
best efforts to cause the Exchange Offer Registration Statement to
be effective continuously, and shall keep the Exchange Offer open
for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall
such period be less than 30 days. The Company and the
Guarantors shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other
than the Series B Notes and the Guarantees shall be included in the
Exchange Offer Registration Statement. The Company and the
Guarantors shall use their respective reasonable best efforts to
cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement
has become effective, but in no event later than 45 days
thereafter (such 45th day being the “ Consummation
Deadline ”).
(c) The
Company shall include a “Plan of Distribution” section
in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account
of such Broker-Dealer as a result of market-making activities or
other trading activities (other than Series A Notes acquired
directly from the Company or any Affiliate of the Company), may
exchange such Transfer Restricted Securities pursuant to the
Exchange Offer. Such “Plan of Distribution” section
shall also contain all other information with respect to such sales
by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such “Plan of
Distribution” shall not name any such Broker-Dealer or
disclose the amount of Transfer Restricted Securities held by any
such Broker-Dealer, except to the extent required by the Commission
as a result of a change in policy, rules or regulations after the
date of this Agreement. See the Shearman & Sterling no-action
letter (available July 2, 1993).
Because such
Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with
its initial sale of any Series B Notes received by such
Broker-Dealer in the Exchange Offer, the Company and the Guarantors
shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such
prospectus delivery requirement. To the extent necessary to ensure
that the prospectus contained in the Exchange Offer Registration
Statement is available for sales of Series B Notes by
Broker-Dealers, the Company and the Guarantors agree to use their
respective best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current
as required by and subject to the provisions of Sections 6(a) and
(c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of
90 days from the Consummation Deadline. The Company and the
Guarantors shall provide sufficient copies of the latest version of
such Prospectus to such Broker-Dealers, promptly upon request, and
in no event later than one day after such request, at any time
during such period.
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4 SHELF
REGISTRATION
(a) Shelf
Registration . If (i) the Exchange Offer is not permitted
by applicable law (after the Company and the Guarantors have
complied with the procedures set forth in Section 6(a)(i) below) or
(ii) if any Holder shall notify the Company within 20 Business
Days following the Consummation of the Exchange Offer that
(A) such Holder was prohibited by law or Commission policy
from participating in the Exchange Offer or (B) such Holder
may not resell the Series B Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and
the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such
Holder, then the Company and the Guarantors shall:
(x) cause to be
filed, on or prior to 30 days after the earlier of
(i) the date on which the Company determines that the Exchange
Offer Registration Statement cannot be filed as a result of clause
(a)(i) above and (ii) the date on which the Company receives
the notice specified in clause (a)(ii) above (such earlier date,
the “ Shelf Filing Deadline ”), a shelf
registration statement pursuant to Rule 415 under the Act
(which may be an amendment to the Exchange Offer Registration
Statement (the “ Shelf Registration Statement
”)), relating to all Transfer Restricted Securities,
and
(y) use their
respective reasonable best efforts to cause such Shelf Registration
Statement to become effective on or prior to 120 days after
the Filing Deadline for the Shelf Registration Statement (such
120th day, the “ Shelf Effectiveness Deadline
”).
If,
after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above,
the Company is required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not
permitted under applicable federal law (i.e., clause (a)(i) above),
then the filing of the Exchange Offer Registration Statement shall
be deemed to satisfy the requirements of clause (x) above;
provided that, in such event, the Company shall remain
obligated to meet the Effectiveness Deadline set forth in clause
(y).
To
the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities
by the Holders thereof entitled to the benefit of this Section 4(a)
and the other securities required to be registered therein pursuant
to Section 6(b)(ii) hereof, the Company and the Guarantors
shall use their respective best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously
effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(b) and (c) hereof and
in conformity with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced
from time to time, for a period of at least two years (as extended
pursuant to Section 6(c)(i)) following the date on which such
Shelf Registration Statement first becomes effective under the Act
or such shorter period that will terminate when all the Transfer
Restricted Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or are
eligible for resale under Rule 144(k) of the Act.
(b)
Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement . No Holder may include any of
its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing, within 20 days after
receipt of a request therefor, the information specified in Items
507 or 508 of Regulation S-K, as applicable, of the Act for
use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included therein.
5
No Holder shall be entitled to
Special Interest pursuant to Section 5 hereof unless and until
such Holder shall have provided all such information. Each selling
Holder agrees to promptly furnish additional information required
to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially
misleading.
5 SPECIAL
INTEREST
If
(i) any Registration Statement required by this Agreement is
not filed with the Commission on or prior to the Filing Deadline or
Shelf Filing Deadline, as applicable, (ii) any such
Registration Statement has not been declared effective by the
Commission on or prior to the Effectiveness Deadline or Shelf
Effectiveness Deadline, as applicable, (iii) the Exchange
Offer has not been Consummated on or prior to the Consummation
Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter
cease to be effective (except as specifically permitted herein) or
fail to be usable for its intended purpose without being succeeded
immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately
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 the Company and the Guarantors hereby
jointly and severally agree to pay to each Holder affected thereby
liquidated damages as special interest (“ Special
Interest ”) in an amount which 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.
Notwithstanding anything to the contrary set forth herein,
(1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the
case of (i) above, (2) upon the effectiveness of the
Exchange Offer Registration Statement (and/or, if applicable, the
Shelf Registration Statement), in the case of (ii) above,
(3) upon Consummation of the Exchange Offer, in the case of
(iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of
(iv) above, the Special Interest payable with respect to the
Transfer Restricted Securities as a result of such clause (i),
(ii), (iii) or (iv), or (5) once the Transfer Restricted
Securities are eligible for resale under Rule 144(k) of the Act, as
applicable, shall cease (at which time the interest rate shall be
restored to its initial rate).
All
accrued Special Interest shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the
Indenture, on each Interest Payment Date, as more fully set forth
in the Indenture and the Notes. Notwithstanding the fact that any
securities for which Special Interest is due cease to be Transfer
Restricted Securities, all obligations of the Company and the
Guarantors to pay Special Interest with respect to securities shall
survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
6 REGISTRATION
PROCEDURES
(a)
Exchange Offer Registration Statement . In connection with
the Exchange Offer, the Company and the Guarantors shall
(x) use their respective best efforts to effect such exchange
and to permit the resale of Series B Notes by Broker-Dealers
that tendered in the Exchange Offer
6
Series A Notes that such
Broker-Dealer acquired for its own account as a result of its
market making activities or other trading activities (other than
Series A Notes acquired directly from the Company or any of
its Affiliates) being sold in accordance with the intended method
or methods of distribution thereof, and (y) comply with all of
the following provisions:
(i) If, following
the date hereof there has been announced a change in Commission
policy with respect to exchange offers such as the Exchange Offer,
that in the reasonable opinion of counsel to the Company raises a
substantial question as to whether the Exchange Offer is permitted
by applicable federal law, the Company and the Guarantors hereby
agree to seek a no-action letter or other favorable decision from
the Commission allowing the Company and the Guarantors to
Consummate an Exchange Offer for such Transfer Restricted
Securities. The Company and the Guarantors hereby agree to pursue
the issuance of such a decision to the Commission staff level but
shall not be required to take commercially unreasonable action to
effect a change of Commission policy. In connection with the
foregoing, the Company and the Guarantors hereby agree to take all
such other reasonable actions as may be requested by the Commission
or otherwise required in connection with the issuance of such
decision, including without limitation (A) participating in
telephonic conferences with the Commission, (B) delivering to
the Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by
the Commission staff.
(ii) As a
condition to its participation in the Exchange Offer, each Holder
(including, without limitation, any Holder who is a Broker Dealer)
shall furnish, upon the request of the Company, prior to the
Consummation of the Exchange Offer, a written representation to the
Company and the Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an Affiliate of
the Company, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person
to participate in, a distribution of the Series B Notes to be
issued in the Exchange Offer and (C) it is acquiring the
Series B Notes in its ordinary course of business. As a
condition to its participation in the Exchange Offer, each Holder
using the Exchange Offer to participate in a distribution of the
Series B Notes shall acknowledge and agree that, if the
resales are of Series B Notes obtained by such Holder in
exchange for Series A Notes acquired directly from the Company
or an Affiliate thereof, it (1) could not, under Commission
policy as in effect on the date of this Agreement, rely on the
position of the Commission enunciated in Morgan Stanley and Co.,
Inc. (available June 5, 1991) and Exxon Capital
Holdings Corporation (available May 13, 1988), as
interpreted in the Commission’s letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters
(including, if applicable, any no-action letter obtained pursuant
to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Items 507 or 508, as applicable, of
Regulation S-K.
7
(iii) Prior to
effectiveness of the Exchange Offer Registration Statement, the
Company and the Guarantors shall, if requested by the staff of the
Commission, provide a supplemental letter to the Commission
(A) stating that the Company and the Guarantors are
registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), Morgan Stanley and Co., Inc.
(available June 5, 1991) as interpreted in the
Commission’s letter to Shearman & Sterling dated
July 2, 1993, and, if applicable, any no-action letter
obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person to
distribute the Series B Notes to be received in the Exchange
Offer and that, to the best of the Company’s and each
Guarantor’s information and belief, each Holder participating
in the Exchange Offer is acquiring the Series B Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the
Series B Notes received in the Exchange Offer and (C) any
other undertaking or representation required by the Commission as
set forth in any no-action letter obtained pursuant to clause
(i) above, if applicable.
(iv) to cause the
Indenture to be qualified under the TIA not later than the
effective date of the Registration Statement and in connection
therewith, cooperate with the Trustee and the Holders to effect
such changes to the Indenture as may be required for such Indenture
to be qualified in accordance with the terms of the TIA; and
execute and use their respective best efforts to cause the Trustee
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 such Indenture to be so qualified in a
timely manner.
(b) Shelf
Registration Statement. In connection with the Shelf Registration
Statement, the Company and the Guarantors shall:
(i) comply with
all the provisions of Section 6(c) below and use their respective
best efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in
the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company and the Guarantors will
prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof, and
(ii) issue, upon
the request of any Holder or purchaser of Series A Notes
covered by any Shelf Registration Statement contemplated by this
Agreement, Series B Notes having an aggregate principal amount
equal to the aggregate principal amount of Series A Notes sold
pursuant to the Shelf Registration Statement and surrendered to the
Company for cancellation; the Company shall register Series B
Notes on the Shelf Registration Statement for this purpose
and
8
issue
the Series B Notes to the purchaser(s) of securities subject
to the Shelf Registration Statement in the names as such
purchaser(s) shall designate.
(c)
General Shelf Provisions . In connection with any Shelf
Registration Statement and any related Prospectus required by this
Agreement, the Company and the Guarantors shall:
(i) use their
respective best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Sections 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event that
would cause any such Registration Statement or the Prospectus
contained therein (A) to contain an untrue statement of
material fact or omit to state any material fact necessary to make
the statements therein not misleading or (B) not to be
effective and usable for resale of Transfer Restricted Securities
during the period required by this Agreement, the Company and the
Guarantors shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission
review is required, use their respective best efforts to cause such
amendment to be declared effective as soon as practicable.
Notwithstanding the foregoing, the Company may suspend the offering
and sales under the Exchange Offer Registration Statement
subsequent to the Consummation of the Exchange Offer or the Shelf
Registration Statement for up to 60 days in each year during
which such Exchange Offer Registration Statement is required to be
effective and usable hereunder subsequent to the Consummation of
the Exchange Offer or such Shelf Registration Statement is required
to be effective and usable hereunder (measured from the date of
effectiveness of such Shelf Registration Statement to successive
anniversaries thereof) if (A) either (y)(I) the Company shall
be engaged in a material acquisition or disposition and (II)(aa)
such acquisition or disposition is required to be disclosed in the
Exchange Offer Registration Statement or the Shelf Registration
Statement, the related Prospectus or any amendment or supplement
thereto, or the failure by the Company to disclose such transaction
in the Exchange Offer Registration Statement or the Shelf
Registration Statement or related Prospectus, or any amendment or
supplement thereto, as then amended or supplemented, would cause
such Exchange Offer Registration Statement or Shelf Registration
Statement, or amendment thereto, to contain an untrue statement of
material fact or omit to state a material fact necessary in order
to make the statement therein not misleading, or would cause such
Prospectus, or supplement thereto, to contain an untrue statement
of material fact or omit to state a material fact necessary in
order to make the statement therein not misleading, in light of the
circumstances under which they were made, (bb) information
regarding the existence of such acquisition or disposition has not
then been publicly disclosed by or on behalf of the Company and
(cc) a majority of the Board of Directors of the Company
determines in the exercise of its good faith judgment that
disclosure of such acquisition or disposition would not be in the
best interest of the Company or would have a material adverse
effect on the consummation of such acquisition or disposition or
(z) a majority of the Board of Directors of the Company
determines in the exercise of its good faith judgment that
compliance with the disclosure obligations set forth in this
Section 6(c)(i) would otherwise have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and
(B) the Company notifies the Holders within two business days
after such Board of Directors makes
9
the
relevant determination set forth in clause (A); provided, however,
that in each such case the applicable period specified in
Section 3 (subsequent to the Consummation of the Exchange
Offer) and Section 4 hereof during which the applicable
Exchange Offer Registration Statement or Shelf Registration
Statement is required to be kept effective and usable shall be
extended by the number of days during which such effectiveness was
suspended pursuant to the foregoing and Special Interest shall not
apply during any period the Company is permitted to suspend
offerings and sales under this sentence;
(ii) prepare and
file with the Commission such amendments and post-effective
amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period set forth in Sections 3 or 4 hereof, as the
case may be; cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Act, and to comply fully with
Rules 424, 430A and 462, as applicable, under the Act in a
timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance
with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to
the Prospectus;
(iii) advise each
Holder promptly and, if requested by such Holder, confirm such
advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with
respect to any applicable 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 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 Registration Statement under
the 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, (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the 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 Registration Statement
in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the
Prospectus in
