EXHIBIT 4.10
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of May 13, 2003 by and among RPM International Inc., a
Delaware corporation ("the Company"), and Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other
Initial Purchasers named in Schedule A to the Purchase Agreement (as defined
below) (collectively, the "Initial Purchasers"), for whom Xxxxxxx Xxxxx is
acting as representative (in such capacity, the "Representative") pursuant to
the Purchase Agreement, dated May 8, 2003 (the "Purchase Agreement"), among the
Company and the Initial Purchasers. In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in the Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Notes (as defined
herein), and the beneficial owners from time to time of the Underlying Common
Stock (as defined herein) issued upon conversion of Notes (each of the foregoing
a "Holder" and together the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. In addition to the terms that are defined elsewhere in this
Agreement, the following terms shall have the following meanings:
"Affiliate" with respect to any specified person, has the
meaning specified in Rule 144.
"Applicable Conversion Price" means, as of any date of
determination, the Applicable Principal Amount per $1,000 principal amount at
maturity of Notes as of such date of determination divided by the Conversion
Rate in effect as of such date of determination or, if no Notes are then
outstanding, the Conversion Rate that would be in effect were Notes then
outstanding.
"Applicable Principal Amount" means, as of any date of
determination, (1) with respect to each $1,000 principal amount at maturity of
Notes means the sum of the initial issue price of such Notes ($505.19) plus
accrued original issue discount and any accrued cash interest with respect to
such Notes through such date of determination, (2) if the Notes have been
converted to Semi-Annual Coupon Notes upon a Tax Event, the Restated Principal
Amount with respect to the Notes, or (3) if no Notes are then outstanding, such
sum calculated in accordance with clause (1) hereof as if such Notes were then
outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Common Stock" means any shares of the common stock, $0.01 par
value, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"Conversion Rate" has the meaning assigned to such term in the
Indenture.
"Damages Accrual Period" has the meaning specified in Section
2(e) hereof.
"Damages Payment Date" means each May 13 and November 13.
"Deferral Notice" has the meaning specified in Section 3(i)
hereof.
"Deferral Period" has the meaning specified in Section 3(i)
hereof.
"Effectiveness Deadline Date" has the meaning specified in
Section 2(a) hereof.
"Effectiveness Period" means the period of two years from the
Issue Date or such shorter period ending on the date that all Registrable
Securities have ceased to be Registrable Securities.
"Event" has the meaning specified in Section 2(e) hereof.
"Event Termination Date" has the meaning specified in Section
2(e) hereof.
"Event Date" has the meaning specified in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning specified in Section
2(a) hereof.
"Holder" has the meaning specified in the second paragraph of
this Agreement.
"Indenture" means the Indenture dated as of the date hereof
between the Company and the Trustee, as trustee, pursuant to which the Notes are
being issued.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Initial Shelf Registration Statement" has the meaning
specified in Section 2(a) hereof.
"Issue Date" means May 13, 2003.
"Liquidated Damages Amount" has the meaning specified in
Section 2(e) hereof.
"Losses" has the meaning specified in Section 6 hereof.
"Material Event" has the meaning specified in Section 3(i)
hereof.
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"Notes" means the Senior Convertible Notes due 2033 of the
Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the Selling
Security Holder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated May 8, 2003 relating to the Notes.
"Notice Holder" means on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such date.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 415 promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
"Record Holder" means with respect to any Damages Payment Date
relating to any Note or shares of Underlying Common Stock as to which any
Liquidated Damages Amount has accrued, the registered holder of such Note or
such shares of Underlying Common Stock, as the case may be, on the 15th day
immediately prior to the next succeeding Damages Payment Date.
"Registrable Securities" means the Notes and the Underlying
Common Stock until such securities have been converted or exchanged and, at all
times subsequent to any such conversion or exchange, any securities into or for
which such securities have been converted or exchanged, and any security issued
with respect thereto upon any stock dividend, split, merger or similar event
until, in the case of any such security, the earliest of (i) its effective
registration under the Securities Act and resale in accordance with the
Registration Statement covering it, (ii) expiration of the holding period that
would be applicable thereto under Rule 144(k) were it not held by an Affiliate
of the Company, or (iii) its sale to the public pursuant to Rule 144.
"Registration Expenses" has the meaning specified in Section 5
hereof.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or explicitly deemed
to be incorporated by reference in such registration statement.
"Restated Principal Amount" has the meaning assigned to such
term in the Indenture.
"Restricted Securities" has the meaning assigned to such term
in Rule 144.
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"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Semi-Annual Coupon Notes" has the meaning assigned to such
term in the Indenture.
"Shelf Registration Statement" has the meaning specified in
Section 2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning
specified in Section 2(b) hereof.
"Tax Event" has the meaning assigned to such term in the
Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Bank of New York (or any successor
entity), the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which
the Notes are convertible or issued upon any such conversion.
SECTION 2. Shelf Registration.
(a) The Company shall prepare and file or cause to be
prepared and filed with the SEC no later than a date which is one-hundred and
twenty (120) days after the Issue Date (the "Filing Deadline Date") a
Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration
Statement") registering the resale from time to time by Holders of all of the
Registrable Securities (the "Initial Shelf Registration Statement"). The Initial
Shelf Registration Statement shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution reasonably elected by the
Holders and set forth in the Initial Shelf Registration Statement; provided that
in no event will such method(s) of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company. The Company shall use reasonable best efforts to cause the Initial
Shelf Registration Statement to be declared effective under the Securities Act
no later than the date (the "Effectiveness Deadline Date") that is one-hundred
and eighty (180) days after the Issue Date, and to keep the Initial Shelf
Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the
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Securities Act until the expiration of the Effectiveness Period. Each Holder
that became a Notice Holder on or prior to the date ten (10) Business Days prior
to the time that the Initial Shelf Registration Statement became effective shall
be named as a selling security holder in the Initial Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of Registrable Securities in accordance
with the Securities Act and applicable state securities laws generally
applicable to all such Holders. Notwithstanding the foregoing, no Holder shall
be entitled to have the Registrable Securities held by it covered by such Shelf
Registration Statement unless such Holder has provided a Notice and
Questionnaire in accordance with Section 2(d) and is in compliance with Section
4. The Company shall not permit any of its security holders (other than the
Holders of Registrable Securities) to include any of the Company's securities in
the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period, the Company shall use reasonable
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected by the Company 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
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is reasonably practicable after such filing or,
if filed during a Deferral Period, after the expiration of such Deferral Period,
and to keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness Period.
(c) 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, to the extent to
which the Company does not reasonably object, as reasonably requested by the
Initial Purchasers or by the Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities agrees that if
such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 2(d) and Section 3(i) and Section 4. Each Holder of
Registrable Securities wishing to sell Registrable Securities pursuant to a
Shelf Registration Statement and related Prospectus agrees to deliver a Notice
and Questionnaire to the Company at least five (5) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, as promptly as is reasonably practicable
after the date a Notice and Questionnaire is delivered, (i) if required by
applicable law, 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 document required
by the SEC so that the Holder delivering such Notice and Questionnaire is
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named as a selling security holder 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 Registrable Securities in accordance with the
Securities Act and applicable state securities laws and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement, use
reasonable efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as is reasonably practicable;
(ii) provide such Holder copies of any documents filed pursuant to Section
2(d)(i); and (iii) notify such Holder as promptly as is reasonably practicable
after the effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(d)(i); provided that if such Notice and
Questionnaire is delivered during a Deferral 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 Deferral
Period in accordance with Section 3(i), provided further, that if under
applicable law the Company has more than one option as to the type or manner of
making any such filing, it will make the required filing or filings in the
manner or of a type that is reasonably expected to result in the earliest
availability of the Prospectus for effecting resales of Registrable Securities.
Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a selling
security holder in any Registration Statement or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder pursuant to the provisions
of Section 2(d) of this Agreement (whether or not such Holder was a Notice
Holder at the time the Registration Statement was initially declared effective)
shall be named as a selling security holder in the Registration Statement or
related Prospectus subject to and in accordance with the requirements of this
Section 2(d).
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if (i) the Initial Shelf
Registration Statement has not been filed on or prior to the Filing Deadline
Date, (ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness Deadline
Date, or (iii) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section 3(i)
hereof (each of the events of a type described in any of the foregoing clauses
(i) through (iii) are individually referred to herein as an "Event," and the
Filing Deadline Date in the case of clause (i), the Effectiveness Deadline Date
in the case of clause (ii), and the date on which the aggregate duration of
Deferral Periods in any period exceeds the number of days permitted by Section
3(i) hereof in the case of clause (iii), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the "Event Termination Date,"
which shall be the following dates with respect to the respective types of
Events: the date the Initial Shelf Registration Statement is filed in the case
of an Event of the type described in clause (i), the date the Initial Shelf
Registration Statement is declared effective under the Securities Act in the
case of an Event of the type described in clause (ii), termination of the
Deferral Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(i) to be exceeded in the case of the
commencement of an Event of the type described in clause (iii).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date after an Event Termination Date (a
"Damages Accrual Period"), the Company agrees to pay, as liquidated damages and
not as a penalty, an amount (the "Liquidated
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Damages Amount"), payable on the Damages Payment Dates to Record Holders of then
outstanding Notes that are Registrable Securities or of then outstanding shares
of Underlying Common Stock issued upon conversion of Notes that are Registrable
Securities, as the case may be, accruing, for each portion of such Damages
Accrual Period beginning on and including a Damages Payment Date (or, in respect
of the first time that the Liquidation Damages Amount is to be paid to Holders
on a Damages Payment Date as a result of the occurrence of any particular Event,
from the Event Date) and ending on but excluding the first to occur of (A) the
date of the end of the Damages Accrual Period or (B) the next Damages Payment
Date, at a rate per annum equal to one-quarter of one percent (0.25%) for the
first 90-day period from the Event Date, and thereafter at a rate per annum
equal to one-half of one percent (0.5%) of the aggregate Applicable Principal
Amount of such Notes, the aggregate Applicable Conversion Price of the shares of
Underlying Common Stock and the Restated Principal Amount of the Semi-Annual
Coupon Notes, as the case may be, in each case determined as of the Business Day
immediately preceding the next Damages Payment Date; provided that any
Liquidated Damages Amount accrued with respect to any Note or portion thereof
called for redemption on a redemption date or converted into Underlying Common
Stock on a conversion date or to Semi-Annual Coupon Notes prior to the Damages
Payment Date, shall, in any such event, be paid instead to the Holder who
submitted such Note or portion thereof for redemption or conversion on the
applicable redemption date or conversion date, as the case may be, on such date
(or promptly following the conversion date, in the case of conversion).
Notwithstanding the foregoing, no Liquidated Damages Amounts shall accrue as to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Following the cure
of all Events requiring the payment by the Company of Liquidated Damages Amounts
to the Holders of Registrable Securities pursuant to this Section, the accrual
of Liquidated Damages Amounts will cease (without in any way limiting the effect
of any subsequent Event requiring the payment of the Liquidated Damages Amount
by the Company).
The Trustee, subject to the applicable provisions of the
Indenture, shall be entitled, on behalf of Holders of Notes, Underlying Common
Stock or Semi-Annual Coupon Notes, to seek any available remedy for the
enforcement of this Agreement, including for the payment of any Liquidated
Damages Amount. Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this Agreement with
respect to which liquidated damages are expressly provided shall be such
liquidated damages. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section
2(e) that are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations with respect to such security have been satisfied in
full (notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of
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Registrable Securities by reason of the failure of the Shelf Registration
Statement to be filed or declared effective or available for effecting resales
of Registrable Securities in accordance with the provisions hereof.
SECTION 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, the Company
shall:
(a) Before filing any Registration Statement or
Prospectus or any amendments or supplements (other than amendments or
supplements that do nothing more substantive than name one or more Notice
Holders as selling security holders) thereto with the SEC, furnish to the
Initial Purchasers copies of all such documents proposed to be filed and use
reasonable efforts to reflect in each such document when so filed with the SEC
such comments as the Initial Purchasers reasonably shall propose within three
(3) Business Days of the delivery of such copies to the Initial Purchasers.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2(a); cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use reasonable efforts to comply with the provisions of the
Securities Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement during the Effectiveness
Period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) As promptly as reasonably practicable give notice to
the Notice Holders and the Initial Purchasers (i) when any Prospectus,
Prospectus supplement, Registration Statement or post-effective amendment to a
Registration Statement has been filed with the SEC and, with respect to a
Registration Statement or any post-effective amendment, when the same has been
declared effective (provided, however, that the Company shall not be required by
this clause (i) to notify (A) the Initial Purchasers of the filing of a
Prospectus supplement that does nothing more substantive than name one or more
Notice Holders as selling security holders or (B) any Notice Holder of the
filing of a Prospectus supplement that does nothing more substantive than name
one or more other Notice Holders as selling security holders), (ii) of any
request, following the effectiveness of the Initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state governmental
authority for amendments or supplements to any Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order or
injunction suspending or enjoining the use of any Prospectus or the
effectiveness of any Registration Statement or the initiation or threatening of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or exemption
from qualification of any of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) of the occurrence of (but not the nature of or details concerning)
a Material Event (provided, however, that no notice by the Company shall be
required pursuant to this clause (v) in the event that the Company either
promptly files a Prospectus supplement to update the
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Prospectus or a Current Report on Form 8-K or other appropriate Exchange Act
report that is incorporated by reference into the Registration Statement, which,
in either case, contains the requisite information with respect to such Material
Event that results in such Registration Statement no longer containing any
untrue statement of material fact or omitting to state a material fact necessary
to make the statements contained therein not misleading) and (vi) of the
determination by the Company that a post-effective amendment to a Registration
Statement will be filed with the SEC, which notice may, at the discretion of the
Company (or as required pursuant to Section 3(i)), state that it constitutes a
Deferral Notice, in which event the provisions of Section 3(i) shall apply.
(d) Use reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case at the earliest possible moment or,
if any such order or suspension is made effective during any Deferral Period, at
the earliest possible moment after the expiration of such Deferral Period.
(e) If reasonably requested by the Initial Purchasers or
any Notice Holder, as promptly as reasonably practicable incorporate in a
Prospectus supplement or post-effective amendment to a Registration Statement
such information as the Initial Purchasers or such Notice Holder shall, on the
basis of a written opinion of nationally-recognized counsel experienced in such
matters (which opinion shall also be addressed to the Company), determine to be
required to be included therein by applicable law and make any required filings
of such Prospectus supplement or such post-effective amendment; provided that
the Company shall not be required to take any actions under this Section 3(e)
that are not, in the reasonable opinion of counsel for the Company, in
compliance with applicable law.
(f) As promptly as reasonably practicable after the
filing of such documents with the SEC furnish to each Notice Holder and the
Initial Purchasers, upon their request and without charge, at least one (1)
conformed copy of the Registration Statement and any amendment thereto,
including financial statements, but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing to the Company by such Notice Holder or the Initial
Purchasers, as the case may be).
(g) During the Effectiveness Period, deliver to each
Notice Holder in connection with any sale of Registrable Securities pursuant to
a Registration Statement, without charge, as many copies of the Prospectus or
Prospectuses relating to such Registrable Securities (including each preliminary
prospectus) and any amendment or supplement thereto as such Notice Holder may
reasonably request; and the Company hereby consents (except during such periods
that a Deferral Notice is outstanding and has not been revoked) to the use of
such Prospectus or each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities covered by
such Prospectus or any amendment or supplement thereto in the manner set forth
therein.
(h) Subject to Section 3(i), prior to any public offering
of the Registrable Securities pursuant to the Shelf Registration Statement, use
reasonable efforts to cooperate
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with the Notice Holders in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Securities for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably requests
in writing (which request may be included in the Notice and Questionnaire), it
being agreed that no such registration or qualification will be made unless so
requested; prior to any public offering of the Registrable Securities pursuant
to the Shelf Registration Statement, use reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during the
Effectiveness Period in connection with such Notice Holder's offer and sale of
Registrable Securities pursuant to such registration or qualification (or
exemption therefrom) and do any and all other acts or things necessary to enable
the disposition in such jurisdictions of such Registrable Securities in the
manner set forth in the relevant Registration Statement and the related
Prospectus; provided that the Company will not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it is
not otherwise qualified or (ii) take any action that would subject it to general
service of process in suits or to taxation in any such jurisdiction where it is
not then so subject.
(i) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement under
Section 8(d) or 8(e) of the Securities Act, (B) the occurrence of any event or
the existence of any fact (a "Material Event") as a result of which any
Registration Statement shall contain any 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 not misleading, or any Prospectus shall contain any
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 the light
of the circumstances under which they were made, not misleading (including, in
any such case, as a result of the non-availability of financial statements), or
(C) the occurrence or existence of any pending corporate development that, in
the discretion of the Company, makes it appropriate to suspend the availability
of the Shelf Registration Statement and the related Prospectus, (i) in the case
of clause (B) above, subject to the next sentence, as promptly as practicable
prepare and file a post-effective amendment to such Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by
reference into such Registration Statement and Prospectus so that such
Registration Statement does not contain any 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 not misleading, and such Prospectus does not contain
any 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
the light of the circumstances under which they were made, not misleading, as
thereafter delivered to the purchasers of the Registrable Securities being sold
thereunder, and, in the case of a post-effective amendment to a Registration
Statement, subject to the next sentence, use reasonable efforts to cause it to
be declared effective as promptly as is reasonably practicable, and (ii) give
notice to the Notice Holders that the availability of the Shelf Registration
Statement is suspended (a "Deferral Notice") and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable Securities
pursuant to the Registration Statement until such Notice Holder's receipt of
copies of the supplemented or amended Prospectus provided for in clause (i)
above, or until it is advised in writing by the Company
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that the Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by reference
in such Prospectus. The Company will use reasonable efforts to ensure that the
use of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as reasonably
practicable thereafter and (z) in the case of clause (C) above, as soon as, in
the discretion of the Company, such suspension is no longer appropriate. So long
as the period during which the availability of the Registration Statement and
any Prospectus is suspended (the "Deferral Period") does not exceed forty-five
(45) days during any three (3) month period or one hundred and twenty (120) days
during any twelve (12) month period, the Company shall not incur any obligation
to pay liquidated damages pursuant to Section 2(e).
(j) If reasonably requested in writing in connection with
a disposition of Registrable Securities pursuant to a Registration Statement,
make reasonably available for inspection during normal business hours by a
representative for the Notice Holders of such Registrable Securities and any
broker-dealers, attorneys and accountants retained by such Notice Holders, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries, and cause the appropriate
executive officers, directors and designated employees of the Company and its
subsidiaries to make reasonably available for inspection during normal business
hours all relevant information reasonably requested by such representative for
the Notice Holders or any such broker-dealers, attorneys or accountants in
connection with such disposition, in each case as is customary for similar "due
diligence" examinations; provided, however, that such persons shall first agree
in writing with the Company that any information that is reasonably designated
by the Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons and shall be used solely
for the purposes of exercising rights under this Agreement, unless (i)
disclosure of such information is required by court or administrative order or
is necessary to respond to inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to federal securities laws in connection with the filing of any
Registration Statement or the use of any Prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person on a
non-confidential basis from a source other than the Company and such source is
not bound by a confidentiality agreement; and provided further, that the
foregoing inspection and information gathering shall, to the greatest extent
possible, be coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by the counsel referred to in Section 5.
(k) Comply with all applicable rules and regulations of
the SEC and make generally available to its securityholders earning statements
(which need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 12-month period
(or 90 days after the end of any 12-month period if such period is a fiscal
year) commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 12-month periods.
11
(l) Cooperate with each Notice Holder to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Registration Statement, and cause such Registrable
Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least
five Business Days prior to any sale of such Registrable Securities.
(m) Provide a CUSIP number for all Registrable Securities
covered by each Registration Statement not later than the effective date of such
Registration Statement and provide the Trustee for the Notes and the transfer
agent for the Common Stock with certificates for the Registrable Securities that
are in a form eligible for deposit with The Depository Trust Company.
(n) Make reasonable effort to provide such information as
is required for any filings required to be made with the National Association of
Securities Dealers, Inc.
(o) Upon (i) the filing of the Initial Shelf Registration
Statement and (ii) the effectiveness of the Initial Shelf Registration
Statement, announce the same, in each case by release to Businesswire, Reuters
Economic Services, Bloomberg Business News or any other means of dissemination
reasonably expected to make such information known publicly.
(p) Take all actions necessary, or reasonably requested
by the Holders of a majority of the Registrable Securities being sold, in order
to expedite or facilitate disposition of such Registrable Securities; provided
that the Company shall not be required to take any action in connection with an
underwritten offering without its consent; and
(q) Cause the Indenture to be qualified under the TIA not
later than the effective date of any Registration Statement; and in connection
therewith, cooperate with the Trustee 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 reasonable efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner.
SECTION 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable 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(d) 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, any
other information regarding such Notice Holder and the distribution of such
Registrable Securities as may be required to be disclosed in the Registration
Statement under applicable law or pursuant to SEC comments and any information
otherwise required by the Company to comply with applicable law or regulations.
Each Holder further agrees, following termination of the Effectiveness Period,
to notify the Company within ten (10) Business Days of a request, of the amount
of Registrable Securities sold pursuant to the
12
Registration Statement and, in the absence of a response, the Company may assume
that all of the Holder's Registrable Securities were so sold.
SECTION 5. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance by the Company of
its obligations under Sections 2 and 3 of this Agreement whether or not any of
the Registration Statements are declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws to the extent such
filings or compliance are required pursuant to this Agreement (including,
without limitation, reasonable fees and disbursements of the counsel specified
in the next sentence in connection with Blue Sky qualifications of the
Registrable Securities under the laws of such jurisdictions as the Notice
Holders of a majority of the Registrable Securities being sold pursuant to a
Registration Statement may designate)), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company), (iii)
duplication expenses relating to copies of any Registration Statement or
Prospectus delivered to any Holders hereunder, (iv) fees and disbursements of
counsel for the Company in connection with the Shelf Registration Statement, and
(v) reasonable fees and disbursements of the Trustee and its counsel and of the
registrar and transfer agent for the Common Stock. In addition, the Company
shall bear or reimburse the Notice Holders for the reasonable fees and
disbursements of one firm of legal counsel for the Holders, which shall, upon
the written consent of the Initial Purchasers (which shall not be unreasonably
withheld), be another nationally recognized law firm experienced in securities
law matters designated by the Company. In addition, the Company shall pay the
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the Registrable Securities on any securities exchange on
which the same securities of the Company are then listed and the fees and
expenses of any person, including special experts, retained by the Company.
SECTION 6. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless
each Initial Purchaser and each Holder of Registrable Securities and each
person, if any, who controls any Initial Purchaser or any Holder of Registrable
Securities within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact required to
be stated therein or
13
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, provided
that (subject to Section 6(d) below) any such settlement is effected
with the prior written consent of the Company; and
(iii) subject to Section 6(c) below, against any and all
expense whatsoever, as incurred (including the fees and disbursements
of counsel), reasonably incurred in investigating, preparing or
defending against any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by or
on behalf of the Initial Purchasers through Xxxxxxx Xxxxx, such Holder of
Registrable Securities (which also acknowledges the indemnity provisions herein)
or any person, if any, who controls an Initial Purchaser or any such Holder of
Registrable Securities expressly for use in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto); provided further, that this indemnity
agreement shall not apply to any loss, liability, claim, damage or expense (1)
arising from an offer or sale of Registrable Securities occurring during a
Deferral Period, if a Deferral Notice was given to such Notice Holder in
accordance with Section 8(c), or (2) if the Holder fails to deliver at or prior
to the written confirmation of sale, the most recent Prospectus, as amended or
supplemented, and such Prospectus, as amended or supplemented, would have
corrected such untrue statement or omission or alleged untrue statement or
omission of a material fact and the delivery thereof was required by law.
(b) In connection with any Shelf Registration in which a
Holder, including, without limitation, the Initial Purchasers, of Registrable
Securities is participating, in furnishing information relating to such Holder
of Registrable Securities to the Company in writing expressly for use in such
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto, the Holders of such Registrable Securities
agree, severally and not jointly, to indemnify and hold harmless each Initial
Purchaser and each person, if any, who controls an Initial Purchaser within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act and the Company, and each person, if any, who controls the Company within
the meaning of either such Section, against any and all loss, liability, claim,
damage and expense described in the indemnity contained in subsection (a) of
this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment
14
thereto), or any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of such Holder of Registrable
Securities (which also acknowledges the indemnity provisions herein) or any
person, if any, who controls any such Holder of Registrable Securities expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
The Initial Purchasers agree to indemnify and hold harmless
the Company, the Holders of Registrable Securities, and each person, if any, who
controls the Company or any Holder of Registrable Securities within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto), or any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company or on behalf of by the Initial Purchasers expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(c) Each indemnified party shall give notice as promptly
as reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced
as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of these indemnity provisions. The
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain a
separate firm as its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related proceedings in
the same jurisdiction, be liable for (a) the reasonable fees and expenses of
more than one firm (in addition to any local counsel) for the Initial
Purchasers, Holders of Registrable Securities, and all persons, if any, who
control an Initial Purchaser or Holders of Registrable Securities within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act (b) the reasonable fees and expenses of more than one firm (in addition to
any local counsel) for the Company, its directors, and each person, if any, who
controls the Company within the meaning of either such Section, and that all
such reasonable fees and expenses shall be reimbursed as they are incurred. In
the event a separate firm is retained for the Initial Purchasers Holders of
Registrable Securities, and control persons of the Initial Purchasers and
Holders of Registrable Securities, such firm shall be designated in writing by
the Initial Purchasers. In the event a
15
separate firm is retained for the Company, and such directors, officers and
control persons of the Company, such firm shall be designated in writing by the
Company. No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that it shall be liable for
any settlement of the nature contemplated by Section 6(a)(ii) effected without
its written consent if (i) such settlement is entered into more than 60 days
after receipt by such indemnifying party of aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 45 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement; provided that
an indemnifying party shall not be liable for any such settlement effected
without its consent if such indemnifying party (1) reimburses such indemnified
party in accordance with such request to the extent it considers such request to
be reasonable and (2) provides written notice to the indemnified party
describing any unpaid balance it believes is unreasonable and the reasons
therefor, in each case prior to the date of such settlement.
(e) If the indemnification to which an indemnified party
is entitled under this Section 6 is for any reason unavailable to or
insufficient although applicable in accordance with its terms to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and of the indemnified party on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative fault of the Company on the one hand and the
Holders of the Registrable Securities or the Initial Purchasers on the other
hand shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Holder of the Registrable Securities or the Initial Purchasers and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 6(e) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above in this
16
Section 6(e). The aggregate amount of losses, liabilities, claims, damages, and
expenses incurred by an indemnified party and referred to above in this Section
6(e) shall be deemed to include any out-of-pocket legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section 6, neither the
Holder of any Registrable Securities nor an Initial Purchaser, shall be required
to indemnify or contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such Holder of Registrable
Securities or by the Initial Purchaser, as the case may be, and distributed to
the public were offered to the public exceeds the amount of any damages that
such Holder of Registrable Securities or the Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 6(e), each person, if any, who
controls an Initial Purchaser or any Holder of Registrable Securities within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Initial Purchaser or such
Holder, and each person, if any, who controls the Company within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Company.
SECTION 7. Information Requirements. The Company covenants that,
if at any time before the end of the Effectiveness Period the Company is not
subject to the reporting requirements of the Exchange Act, it will cooperate
with any Holder of Registrable Securities and take such further reasonable
action as any Holder of Registrable Securities may reasonably request in writing
(including, without limitation, making such reasonable representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitations of Rule 144 and Rule 144A under
the Securities Act and customarily taken in connection with sales pursuant to
such exemptions. Upon the written request of any Holder of Registrable
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such filing requirements, unless such a statement
has been included in the Company's most recent report required to be filed and
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 7 shall be deemed to require the Company
to register any of its securities under any section of the Exchange Act.
SECTION 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of
the date hereof, a party to, nor shall they, on or after the date of this
Agreement, enter into, any agreement with
17
respect to the Company's securities that conflicts with the rights granted to
the Holders of Registrable Securities in this Agreement. The Company represents
and warrants that the rights granted to the Holders of Registrable Securities
hereunder do not in any way conflict with the rights granted to the holders of
the Company's securities under any other agreements.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of a majority of the then outstanding Underlying Common Stock
constituting Registrable Securities (with Holders of Notes or Semi-Annual Coupon
Notes deemed to be the Holders, for purposes of this Section, of the number of
outstanding shares of Underlying Common Stock into which such Notes or
Semi-Annual Coupon Notes are or would be convertible or exchangeable as of the
date on which such consent is requested). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; provided that the provisions of this sentence may not be amended,
modified, or supplemented except in accordance with the provisions of the
immediately preceding sentence. Each Holder of Registrable Securities
outstanding at the time of any such amendment, modification, supplement, waiver
or consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(b), whether or
not any notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Registrable Securities or is
delivered to such Holder.
(c) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
by telecopier, by courier guaranteeing overnight delivery or by first-class
mail, return receipt requested, and shall be deemed given (i) when made, if made
by hand delivery, (ii) upon confirmation, if made by telecopier, (iii) one (1)
Business Day after being deposited with such courier, if made by overnight
courier or (iv) on the date indicated on the notice of receipt, if made by
first-class mail, to the parties as follows:
(A) if to a Holder of Registrable Securities that is not a Notice
Holder, at the address for such Holder then appearing in the Registrar (as
defined in the Indenture);
(B) if to a Notice Holder, at the most current address given by
such Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
if to the Company, to:
RPM International Inc.
X.X. Xxx 000
0000 Xxxxx Xxxx
Xxxxxx, Xxxx 00000
18
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: General Counsel
and
Xxxxxx, Halter & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxx X. Xxxxx
and
if to the Initial Purchasers, to:
Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
4 World Financial Center
New York, New York 10080
Attention: Syndicate Department
Telecopier: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval
of Holders of a specified percentage of Registrable Securities is required
hereunder, Registrable Securities held by the Company or its Affiliates (other
than the Initial Purchasers or subsequent Holders of Registrable Securities if
such subsequent Holders are deemed to be such affiliates solely by reason of
their holdings of such Registrable Securities) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(e) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties and, without requiring any express assignment, shall inure to the
benefit of and be binding upon each Holder of any Registrable Securities.
(f) 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 original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
19
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated thereby, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term,
provision, covenant or restriction, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
(j) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and is 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 and the
registration rights granted by the Company with respect to the Registrable
Securities. Except as provided in the Purchase Agreement, 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 Registrable Securities. This Agreement supersedes
all prior agreements and undertakings among the parties with respect to such
registration rights.
(k) Termination. This Agreement and the obligations of
the parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof, the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
20
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
Very truly yours,
RPM INTERNATIONAL INC.
By /s/ P. XXXXX XXXXXXXX
-----------------------------------------
Name: P. XXXXX XXXXXXXX
Title: Senior Vice President, General
Counsel and Secretary
Accepted as of the date
first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: XXXXX X. XXXXXXXX
Title: Managing Director
For itself and the other several Initial Purchasers
named in Schedule A to the Purchase Agreement.
