Exhibit 4.4
EXECUTION COPY
$100,000,000
AMERICAN ROCK SALT COMPANY LLC
$100,000,000 9 1/2% of Senior Secured Notes due 2014
REGISTRATION RIGHTS AGREEMENT
March 17, 2004
XXXXXXXXX & COMPANY, INC.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
AMERICAN ROCK SALT COMPANY LLC, a New York limited liability company
(the "Company"), is issuing and selling to Xxxxxxxxx & Company, Inc. (the
"Initial Purchaser"), upon the terms set forth in the Purchase Agreement dated
March 5, 2004, by and between the Company and the Initial Purchaser (the
"Purchase Agreement"), $100,000,000 aggregate principal amount of 9 1/2% Senior
Secured Notes due 2014 issued by the Company (each, a "Note" and collectively,
the "Notes"). As an inducement to the Initial Purchaser to enter into the
Purchase Agreement, the Company agrees with the Initial Purchaser, for the
benefit of the Holders (as defined below) of the Notes (including, without
limitation, the Initial Purchaser), as follows:
1. Definitions
Capitalized terms that are used herein without definition and are
defined in the Purchase Agreement shall have the respective meanings ascribed to
them in the Purchase Agreement. As used in this Agreement, the following terms
shall have the following meanings:
Additional Interest: See Section 4(a).
Advice: See Section 6(v).
Agreement: This Registration Rights Agreement, dated as of the Closing
Date, between the Company and the Initial Purchaser.
Applicable Period: See Section 2(e).
Business Day: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
Closing Date: March 17, 2004.
Collateral Agreements: Shall have the meaning set forth in the
Indenture.
Company: See the introductory paragraph to this Agreement.
Day: Unless otherwise expressly provided, a calendar day.
Effectiveness Date: The 210th day after the Issue Date.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: Senior Secured Notes due 2014 of the Company registered
under the Securities Act, identical in all material respects to the Notes,
except for restrictive legends and additional interest provisions.
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: The 120th day after the Issue Date.
Holder: Any registered holder of Registrable Notes.
Indemnified Party: See Section 8(c).
Indemnifying Party: See Section 8(c).
Indenture: The Indenture, dated as of the Closing Date, between the
Company and U.S. Bank National Association, as trustee, pursuant to which the
Notes are being issued, as amended or supplemented from time to time in
accordance with the terms hereof.
Initial Purchaser: See the introductory paragraph to this Agreement.
Initial Shelf Registration Statement: See Section 3(a).
Inspectors: See Section 6(o).
Issue Date: March 17, 2004.
Lien: Shall have the meaning set forth in the Indenture.
Losses: See Section 8(a).
Maximum Contribution Amount: See Section 8(d).
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NASD: National Association of Securities Dealers, Inc.
Notes: See the introductory paragraph to this Agreement.
Participating Broker-Dealer: See Section 2(e).
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
Private Exchange: See Section 2(f).
Private Exchange Notes: See Section 2(f).
Prospectus: 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 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Notes covered by such
Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Purchase Agreement: See the introductory paragraph to this Agreement.
Records: See Section 6(o).
Registrable Notes: (i) Notes, (ii) Private Exchange Notes and (iii)
Exchange Notes received in the Exchange Offer, in each case, that may not be
sold without restriction under federal or state securities laws.
Registration Statement: Any registration statement of the Company filed
with the SEC under the Securities Act (including, but not limited to, the
Exchange Registration Statement, the Shelf Registration Statement and any
Subsequent Shelf Registration Statement) that covers any of the Registrable
Notes 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 material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
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Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
Rule 430A: Rule 430A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Exchange Notes and the Private Exchange
Notes.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(j).
Shelf Registration Statement: See Section 3(b).
Subsequent Shelf Registration Statement: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) Unless the Exchange Offer would not be permitted by applicable
laws or a policy of the SEC, the Company shall (i) prepare and
file with the SEC no later than the Filing Date, a registration
statement (the "Exchange Registration Statement") on an
appropriate form under the Securities Act with respect to an
offer (the "Exchange Offer") to the Holders of Notes to issue
and deliver to such Holders, in exchange for the Notes, a like
principal amount of Exchange Notes, (ii) use its best efforts to
cause the Exchange Registration Statement to become effective as
promptly as practicable after the filing thereof, but in no
event later than the Effectiveness Date, (iii) use its best
efforts to keep the Exchange Registration Statement effective
until the consummation of the Exchange Offer in accordance with
its terms, and (iv) commence the Exchange Offer and use its best
efforts to issue on or prior to 30 days after the date on which
the Exchange Registration Statement is declared effective,
Exchange Notes in exchange for all Notes tendered prior thereto
in the Exchange Offer. The Exchange Offer shall not be subject
to any conditions, other than that the Exchange Offer does not
violate applicable law or any applicable interpretation of the
staff of the SEC.
(b) The Exchange Notes shall be issued under, and entitled to the
benefits of, (i) the Indenture or a trust indenture that is
identical to the Indenture (other than such
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changes as are necessary to comply with any requirements of the
SEC to effect or maintain the qualifications thereof under the
TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment due date on which
interest was paid on the Notes surrendered in exchange
therefor or, if no interest has been paid on the Notes, from
the date of original issue of the Notes. Each Exchange Note
and Private Exchange Note shall bear interest at the rate set
forth thereon; provided, that interest with respect to the
period prior to the issuance thereof shall accrue at the rate
or rates borne by the Notes from time to time during such
period.
(d) The Company may require each Holder as a condition
to participation in the Exchange Offer to represent to the
Company that at the time of the consummation of the Exchange
Offer (i) any Exchange Notes received by such Holder will be
acquired in the ordinary course of its business, (ii) such
Holder has not entered into any arrangement or understanding
with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) such
Holder is not an "affiliate" (as defined in Rule 405 of the
Securities Act) of the Company or if such Holder is an affiliate
such Holder will comply with the registration and prospectus
delivery requirements of the Securities Act to the extent
applicable, (iv) if such Holder is not a broker-dealer, that it
is not engaged in, and does not intend to engage in, the
distribution of the Notes and (v) if such Holder is a
Participating Broker-Dealer, that it will deliver a Prospectus
in connection with any resale of the Exchange Notes.
(e) The Company shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution" reasonably acceptable to the Initial Purchaser
which shall contain all the information that the SEC may require
with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule
13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer for its own account in
exchange for Notes that were acquired by it as a result of
market-making activities or other trading activities (a
"Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the staff of the SEC
or such positions or policies, in the judgment of the Initial
Purchaser, represent the prevailing views of the staff of the
SEC. Such "Plan of Distribution" section shall also allow, to
the extent permitted by applicable policies and regulations of
the SEC, the use of the Prospectus by all Persons subject to the
prospectus delivery requirements of the Securities Act,
including, to the extent so permitted, all Participating
Broker-Dealers, and include a statement describing the manner in
which Participating Broker-Dealers may resell the Exchange
Notes. The Company shall use its best efforts to keep the
Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to permit
such Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Securities Act
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for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Notes (the
"Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having the status
of an unsold allotment in the initial distribution, the Company
(upon the written request from the Initial Purchaser) shall,
simultaneously with the delivery of the Exchange Notes pursuant
to the Exchange Offer, issue and deliver to the Initial
Purchaser, in exchange (the "Private Exchange") for the Notes
held by the Initial Purchaser, a like principal amount of Senior
Secured Notes (issued under the same Indenture as the Exchange
Notes) that are identical in all material respects to the
Exchange Notes except for the existence of restrictions on
transfer thereof under the Securities Act and securities laws of
the several states of the United States (the "Private Exchange
Notes"). The Private Exchange Notes shall bear the same CUSIP
number as the Exchange Notes.
(g) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together
with an appropriate letter of transmittal that is an
exhibit to the Exchange Registration Statement, and any
related documents;
(ii) keep the Exchange Offer open for not less than 30 days
(or longer, if required by applicable law) after the
date notice thereof is mailed to the Holders;
(iii) utilize the services of a depository for the Exchange
Offer with an address in the Borough of Manhattan, The
City of New York, which may be the Trustee or an
affiliate thereof;
(iv) permit Holders to withdraw tendered Registrable Notes at
any time prior to the close of business, New York time,
on the last Business Day on which the Exchange Offer
shall remain open; and
(v) otherwise comply with all applicable laws.
(h) As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Registrable Notes validly
tendered and not withdrawn pursuant to the Exchange
Offer or the Private Exchange, as the case may be;
(ii) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
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(iii) cause the Trustee to authenticate and deliver promptly
to each Holder tendering such Registrable Notes,
Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Notes of such
Holder so accepted for exchange.
(i) The Exchange Notes and the Private Exchange Notes may be issued
under the Indenture or an indenture identical to the Indenture
(other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification
thereof under the TIA), which in either case will provide that
(i) the Exchange Notes will not be subject to the transfer
restrictions or additional interest provisions set forth in the
Indenture, (ii) the Private Exchange Notes will be subject to
the transfer restrictions set forth in the Indenture, and (iii)
the Exchange Notes, the Private Exchange Notes and the Notes, if
any, will be deemed one class of security (subject to the
provisions of the Indenture) and entitled to participate in all
the security granted by the Company pursuant to the Collateral
Agreements (as such term is defined in the Indenture) on an
equal and ratable basis.
(j) If, (i) any change in law or in applicable interpretations
thereof by the staff of the SEC would not permit the
consummation of the Exchange Offer, (ii) the Exchange Offer is
not consummated within 30 days after the Effectiveness Date,
(iii) the Initial Purchaser so requests with respect to the
Notes (or the Private Exchange Notes) not eligible to be
exchanged for Exchange Notes in the Exchange Offer and held by
it following consummation of the Exchange Offer, or (iv) in the
case of (A) any Holder not permitted to participate in the
Exchange Offer or (B) any Holder participating in the Exchange
Offer that receives Exchange Notes that may not be sold without
restriction under state and federal securities laws (other than
due solely to the status of such Holder as an affiliate of the
Company within the meaning of the Securities Act) and, in either
case contemplated by this clause (iv), such Holder notifies the
Company within 45 days of consummation of the Exchange Offer,
then in each case the Company shall promptly (and in any event
within five Business Days of such notification) deliver to the
Holders and the Trustee notice thereof (the "Shelf Notice") and
shall as promptly as possible thereafter (but in no event later
than 30 days following the delivery of the Shelf Notice) file an
Initial Shelf Registration Statement pursuant to Section 3.
3. Shelf Registration
If a Shelf Notice is delivered pursuant to Section 2(j), then this
Section 3 shall apply to all Registrable Notes. Otherwise, upon consummation of
the Exchange Offer in accordance with Section 2, the provisions of this Section
3 shall apply solely with respect to (i) Notes held by any Holder thereof not
permitted to participate in the Exchange Offer, (ii) Private Exchange Notes and
(iii) Exchange Notes that are not freely tradeable as contemplated by Section
2(j)(iv) hereof, provided in each case that the relevant Holder has duly
notified the Company within 45 days of the Exchange Offer as required by Section
2(j)(iv).
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(a) Initial Shelf Registration. The Company shall, as promptly as
practicable, file with the SEC a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Notes (the "Initial Shelf
Registration Statement") within 30 days of the delivery of the
Shelf Notice and shall use its best efforts to cause such
Initial Shelf Registration Statement to be declared effective
under the Securities Act as promptly as practicable thereafter
(but in no event more than 90 days after delivery of the Shelf
Notice); provided, however, that if the Company has not yet
filed an Exchange Registration Statement, the Company shall file
with the SEC the Initial Shelf Registration Statement on or
prior to the Filing Date and shall use its best efforts to cause
such Initial Shelf Registration Statement to be declared
effective under the Securities Act on or prior to the
Effectiveness Date. The Initial Shelf Registration Statement
shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Notes for resale by Holders in
the manner or manners reasonably designated by them (including,
without limitation, one or more underwritten offerings). The
Company shall not permit any securities other than the
Registrable Notes to be included in any Shelf Registration
Statement. The Company shall use its best efforts to keep the
Initial Shelf Registration Statement continuously effective
under the Securities Act until the date which is 24 months from
the Closing Date (the "Effectiveness Period"), or such shorter
period ending when (i) all Registrable Notes covered by the
Initial Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Initial Shelf
Registration Statement (ii) a Subsequent Shelf Registration
Statement (as defined below) covering all of the Registrable
Notes covered by and not sold under the Initial Shelf
Registration Statement or an earlier Subsequent Shelf
Registration Statement has been declared effective under the
Securities Act or (iii) there cease to be any outstanding
Registrable Notes. The Company shall be deemed not to have used
its best efforts to keep the Initial Shelf Registration
Statement effective during the Effectiveness Period if it
voluntarily takes any action that would result in Holders of
Registrable Notes covered thereby not being able to offer and
sell such Registrable Notes during the Effectiveness Period,
unless such action is required by applicable law.
(b) Subsequent Shelf Registrations. 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 (other than because of the sale
of all of the securities registered thereunder), the Company
shall use its best efforts to obtain the prompt withdrawal of
any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend
such Shelf Registration Statement in a manner designed to obtain
the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes (a
"Subsequent Shelf Registration Statement"). If a Subsequent
Shelf Registration Statement is filed, the Company shall use its
best efforts to cause the Subsequent Shelf Registration
Statement to be declared effective as soon as practicable after
such filing and to keep such Subsequent Shelf Registration
Statement continuously effective for a period equal to the
number of days in the
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Effectiveness Period less the aggregate number of days during
which the Initial Shelf Registration Statement or any Subsequent
Shelf Registration Statement was previously continuously
effective. As used herein the term "Shelf Registration
Statement" means the Initial Shelf Registration Statement and
any Subsequent Shelf Registration Statements.
(c) Supplements and Amendments. The Company shall promptly
supplement and amend any Shelf Registration Statement if
required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration
Statement, if required by the Securities Act, or if reasonably
requested in writing by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Shelf
Registration Statement or by any underwriter of such Registrable
Notes.
(d) Provision of Information. No Holder of Registrable Notes shall
be entitled to include any of its Registrable Notes in any Shelf
Registration Statement pursuant to this Agreement unless such
Holder furnishes to the Company and the Trustee in writing,
within 20 days after receipt of a written request therefor, such
information as the Company and the Trustee after conferring with
counsel with regard to information relating to Holders that
would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, may
reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein, and no such Holder
shall be entitled to Additional Interest pursuant to Section 4
hereof unless and until such Holder shall have
provided such information.
4. Additional Interest
(a) The Company acknowledges and agrees that the Holders of
Registrable Notes will suffer damages if the Company fails to
fulfill its material obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent
of such damages with precision. Accordingly, the Company agrees
to pay additional cash interest on the Notes ("Additional
Interest") under the circumstances and to the extent set forth
below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Registration Statement nor
the Initial Shelf Registration Statement has been filed
with the SEC on or prior to the Filing Date or (B)
notwithstanding that the Company has consummated or will
consummate an Exchange Offer, the Company is required to
file a Shelf Registration Statement and such Shelf
Registration Statement is not filed on or prior to the
date required by this Agreement, then, commencing on the
day after either such required filing date, Additional
Interest shall accrue on the Notes over and above any
stated interest at a rate of 0.25% per annum of the
principal amount of such Notes for the first 90 days
immediately following such filing date, such Additional
Interest rate increasing by an additional 0.25% per
annum at the beginning of each
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subsequent 90-day period, subject to the provisos in the
last sentence of this paragraph;
(ii) if (A) neither the Exchange Registration Statement nor
the Initial Shelf Registration Statement is declared
effective by the SEC on or prior to the Effectiveness
Date, or (B) notwithstanding that the Company has
consummated or will consummate an Exchange Offer, the
Company is required to file a Shelf Registration
Statement and such Shelf Registration Statement is not
declared effective by the SEC on or prior to the 90th
day following the date such Shelf Registration Statement
was filed, then, commencing on the day after either such
required effective date, Additional Interest shall
accrue on the Notes over and above any stated interest
at a rate of 0.25% per annum of the principal amount of
such Notes for the first 90 days immediately following
such effective date, such Additional Interest rate
increasing by an additional 0.25% per annum at the
beginning of each subsequent 90-day period, subject to
the provisos in the last sentence of this paragraph;
(iii) if (A) the Company has not exchanged Exchange Notes for
all Notes validly tendered in accordance with the terms
of the Exchange Offer on or prior to the date that is 30
business days after the Effectiveness Date, (B) the
Exchange Registration Statement ceases to be effective
at any time prior to the time that the Exchange Offer is
consummated, (C) if applicable, a Shelf Registration
Statement has been declared effective and such Shelf
Registration Statement ceases to be effective at any
time prior to the second anniversary of the Issue Date
(other than after such time as all Notes have been
disposed of thereunder) and is not declared effective
again within 30 days, or (D) pending the announcement of
a material corporate transaction, the Company issues a
written notice pursuant to Section 6(e)(v) or (vi) that
a Shelf Registration Statement or Exchange Registration
Statement is unusable and the aggregate number of days
in any 365-day period for which all such notices issued
or required to be issued, have been, or were required to
be, in effect exceeds 120 days in the aggregate or 30
days consecutively, in the case of a Shelf Registration
Statement, or 15 days in the aggregate in the case of an
Exchange Registration Statement, then Additional
Interest shall accrue on the Notes, over and above any
stated interest, at a rate of 0.25% per annum of the
principal amount of such Notes commencing on (w) the
31st business day after the Effectiveness Date, in the
case of clause (A) above, or (x) the date the Exchange
Registration Statement ceases to be effective without
being declared effective again within 30 days, in the
case of clause (B) above, or (y) the day such Shelf
Registration Statement ceases to be effective in the
case of clause (C) above, or (z) the day the Exchange
Registration Statement or Shelf Registration Statement
ceases to be usable in the case of clause (D) above,
such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each
subsequent 90-day period subject to the provisos in the
last sentence of this paragraph;
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provided, however, that Additional Interest will not accrue
under more than one of the foregoing clauses (i) through (iii)
at any one time; provided, further, however, that the maximum
Additional Interest rate on the Notes may not exceed at any one
time in the aggregate 1.0% per annum; and provided, further,
however, that (1) upon the filing of the Exchange Registration
Statement or Shelf Registration Statement (in the case of clause
(i) above), (2) upon the effectiveness of the Exchange
Registration Statement or Shelf Registration Statement (in the
case of clause (ii) above), or (3) upon the exchange of Exchange
Notes for all Notes tendered (in the case of clause (iii)(A)
above), or upon the effectiveness of the Exchange Registration
Statement that had ceased to remain effective (in the case of
clause (iii)(B) above), or upon the effectiveness of a Shelf
Registration Statement which had ceased to remain effective (in
the case of clause (iii)(C) above), or upon the effectiveness of
such Shelf Registration Statement or Exchange Registration
Statement (in the case of clause (iii)(D) above), Additional
Interest on the Notes as a result of such clause (or the
relevant subclause thereof), as the case may be, shall cease to
accrue.
(b) The Company shall notify the Trustee within 3 Business Days
after each and every date on which an event occurs in respect of
which Additional Interest is required to be paid (an "Event
Date"). Any amounts of Additional Interest due pursuant to
clause (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash, on the dates and in the manner provided in the
Indenture and whether or not any cash interest would then be
payable on such date, commencing with the first such semi-annual
date occurring after any such Additional Interest commences to
accrue. The amount of Additional Interest will be determined by
multiplying the applicable Additional Interest rate by the
principal amount of the Notes, multiplied by a fraction, the
numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on
the basis of a 360-day year comprised of twelve 30-day months
and, in the case of a partial month, the actual number of days
elapsed), and the denominator of which is 360.
5. Hold-Back Agreements
The Company agrees that it will not effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof (other than Additional Notes
(as defined in the Indenture) issued under the Indenture), or any securities
convertible into or exchangeable or exercisable for such securities, during the
10 days prior to, and during the 90-day period beginning on, the effective date
of any Registration Statement filed pursuant to Sections 2 and 3 hereof unless
the Holders of a majority in the aggregate principal amount of the Registrable
Notes to be included in such Registration Statement consent, if the managing
underwriter thereof so requests in writing.
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6. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of such securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Company hereunder, the Company
shall:
(a) Prepare and file with the SEC on or prior to the Filing Date,
the Exchange Registration Statement or if the Exchange
Registration Statement is not filed because of the circumstances
contemplated by Section 2(j), a Shelf Registration Statement as
prescribed by Section 3, and use its best efforts to cause each
such Registration Statement to become effective and remain
effective as provided herein; provided that, if (1) a Shelf
Registration Statement is filed pursuant to Section 3 or (2) a
Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period relating
thereto, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto the Company shall, if
requested, furnish at no charge to the Holders of the
Registrable Notes to be registered pursuant to such Shelf
Registration Statement, each Participating Broker-Dealer, the
managing underwriters, if any, and each of their respective
counsel, a reasonable opportunity to review copies of all such
documents (including copies of any documents to be incorporated
by reference therein and all exhibits thereto) proposed to be
filed (in each case at least 5 Business Days prior to such
filing). The Company shall not file any such Registration
Statement or Prospectus or any amendments or supplements thereto
in respect of which the Holders must provide information for the
inclusion therein without the Holders being afforded an
opportunity to review such documentation if the holders of a
majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, or the managing
underwriters, if any, or any of their respective counsel shall
reasonably object in writing on a timely basis. A Holder shall
be deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue
statement of a material fact or omits to state any material fact
necessary to make the statements therein not misleading or fails
to comply with the applicable requirements of the Securities
Act.
(b) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture (or
other indenture relating to the Registrable Notes) to be
qualified under the TIA not later than the effective date of the
first Registration Statement; and in connection therewith, to
effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its best efforts to cause such
trustee to execute, all documents as may be required to effect
such
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changes, and all other forms and documents required to be filed
with the SEC to enable such indenture to be so qualified in a
timely manner.
(c) Prepare and file with the SEC such pre-effective amendments and
post-effective amendments to each Shelf Registration Statement
or Exchange Registration Statement, as the case may be, as may
be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period or the Applicable Period,
as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable
law, and as so supplemented to be filed pursuant to Rule 424 (or
any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities
Act and the Exchange Act applicable to them with respect to the
disposition of all securities covered by such Registration
Statement as so amended or in such Prospectus as so supplemented
and with respect to the subsequent resale of any securities
being sold by a Participating Broker-Dealer covered by any such
Prospectus. The Company shall not, during the Applicable Period,
voluntarily take any action that would result in selling Holders
of the Registrable Notes covered by a Registration Statement or
Participating Broker-Dealers seeking to sell Exchange Notes not
being able to sell such Registrable Notes or such Exchange Notes
during that period, unless such action is required by applicable
law, rule or regulation or permitted by this Agreement.
(d) Furnish to such selling Holders and Participating Broker-Dealers
who so request in writing (i) upon the Company's receipt, a copy
of the order of the SEC declaring such Registration Statement
and any post effective amendment thereto effective, (ii) such
reasonable number of copies of such Registration Statement and
of each amendment and supplement thereto (in each case including
any documents incorporated therein by reference and all
exhibits), (iii) such reasonable number of copies of the
Prospectus included in such Registration Statement (including
each preliminary Prospectus) and each amendment and supplement
thereto, and such reasonable number of copies of the final
Prospectus as filed by the Company pursuant to Rule 424(b) under
the Securities Act, in conformity with the requirements of the
Securities Act and each amendment and supplement thereto, and
(iv) such other documents (including any amendments required to
be filed pursuant to clause (c) of this Section 6), as any such
Person may reasonably request in writing. The Company hereby
consents to the use of the Prospectus by each of the selling
Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers, if any, in connection with the
offering and sale of the Registrable Notes covered by, or the
sale by Participating Broker-Dealers of the Exchange Notes
pursuant to, such Prospectus and any amendment or supplement
thereto.
(e) If (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period
13
relating thereto, the Company shall notify in writing the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, and the managing
underwriters, if any, and each of their respective counsel
promptly (but in any event within 2 Business Days) (i) when a
Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has
become effective (including in such notice a written statement
that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective
amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference
and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any Prospectus or
the initiation of any proceedings for that purpose, (iii) if at
any time when a Prospectus is required by the Securities Act to
be delivered in connection with sales of the Registrable Notes
the representations and warranties of the Company contained in
any agreement (including any underwriting agreement)
contemplated by Section 6(n) hereof cease to be true and
correct, (iv) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any
Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding
for such purpose, (v) of the happening of any event, the
existence of any condition of any information becoming known
that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect
or that requires the making of any changes in, or amendments or
supplements to, such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement and
the Prospectus, it will 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
light of the circumstances under which they were made, not
misleading, (vi) of any reasonable determination by the Company
that a post-effective amendment to a Registration Statement
would be appropriate and (vii) of any request by the SEC for
amendments to the Registration Statement or supplements to the
Prospectus or for additional information relating thereto.
(f) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of a Prospectus or
suspending the qualification (or exemption from qualification)
of any of the Registrable Notes or the Exchange Notes to be sold
by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use its best
efforts to obtain the withdrawal of any such order at the
earliest possible date.
(g) If (A) a Shelf Registration Statement is filed pursuant to
Section 3, (B) a Prospectus contained in an Exchange
Registration Statement filed pursuant to
14
Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period or (C) reasonably requested
in writing by the managing underwriters, if any, or the Holders
of a majority in aggregate principal amount of the Registrable
Notes being sold in connection with an underwritten offering,
(i) promptly incorporate in a Prospectus supplement or
post-effective amendment such information or revisions to
information therein relating to such underwriters or selling
Holders as the managing underwriters, if any, or such Holders or
any of their respective counsel reasonably request in writing to
be included or made therein and (ii) make all required filings
of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received
notification of the matters to be incorporated in such
Prospectus supplements or post-effective amendment.
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its best
efforts to register or qualify, and cooperate with the selling
Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or
qualification) of such Registrable Notes or Exchange Notes, as
the case may be, for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any
selling Holder, Participating Broker-Dealer or any managing
underwriter or underwriters, if any, reasonably request in
writing; provided that where Exchange Notes held by
Participating Broker-Dealers or Registrable Notes are offered
other than through an underwritten offering, the Company agrees
to cause its counsel to perform Blue Sky investigations and file
any registrations and qualifications required to be filed
pursuant to this Section 6(h), keep each such registration or
qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that the Company
shall not be required to (A) qualify generally to do business in
any jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C)
subject itself to taxation in any such jurisdiction where it is
not then so subject.
(i) If (A) a Shelf Registration Statement is filed pursuant to
Section 3 or (B) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is requested
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, cooperate with the selling Holders of
Registrable Notes and the managing underwriter or underwriters,
if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold,
15
which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository
Trust Company, and enable such Registrable Notes to be in such
denominations and registered in such names as the managing
underwriter or underwriters, if any, or Holders may reasonably
request in writing.
(j) Use its best efforts to cause the Registrable Notes covered by
any Registration Statement to be registered with or approved by
such governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter, if any,
to consummate the disposition of such Registrable Notes, except
as may be required solely as a consequence of the nature of such
selling Holder's business, in which case the Company shall
cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals;
provided that the Company shall not be required to (A)
qualify generally to do business in any jurisdiction where it is
not then so qualified, (B) take any action that would subject it
to general service of process in any jurisdiction where it is
not then so subject or (C) subject itself to taxation in any
such jurisdiction where it is not then so subject.
(k) If (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated
by Section 6(e)(v) or 6(e)(vi) hereof, as promptly as
practicable, prepare and file with the SEC, at the expense of
the Company, a supplement or post-effective amendment to the
Registration Statement or a supplement to the related Prospectus
or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the
Registrable Notes being sold thereunder or to the purchasers of
the Exchange Notes to whom such Prospectus will be delivered by
a Participating Broker-Dealer, such Prospectus will not contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under
which they were made, not misleading, and, if SEC review is
required, use its best efforts to cause such post-effective
amendment to be declared effective as soon as possible.
(l) Use its best efforts to cause the Registrable Notes covered by a
Registration Statement to be rated with such appropriate rating
agencies, if so requested in writing by the Holders of a
majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or the managing
underwriter or underwriters, if any.
(m) Prior to the initial issuance of the Exchange Notes, (i) provide
the Trustee with one or more certificates for the Registrable
Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide a CUSIP number for the Exchange Notes.
16
(n) If a Shelf Registration Statement is filed pursuant to Section
3, enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in
underwritten offerings of debt securities similar to the Notes,
as may be appropriate in the circumstances) and take all such
other actions in connection therewith (including those
reasonably requested in writing by the managing underwriters, if
any, or the Holders of a majority in aggregate principal amount
of the Registrable Notes being sold) in order to expedite or
facilitate the registration or the disposition of such
Registrable Notes, and in such connection, whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the
underwriters, if any, with respect to the business of the
Company and its subsidiaries as then conducted, and the
Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein,
in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings of
debt securities similar to the Notes, as may be appropriate in
the circumstances, and confirm the same if and when reasonably
required; (ii) obtain an opinion of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold), addressed
to each selling Holder and each of the underwriters, if any,
covering the matters customarily covered in opinions of counsel
to the Company requested in underwritten offerings of debt
securities similar to the Notes, as may be appropriate in the
circumstances; (iii) obtain "cold comfort" letters and updates
thereof (which letters and updates (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters) from the independent certified public accountants
of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or
of any business acquired by the Company for which financial
statements and financial data are, or are required to be,
included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings of
debt securities similar to the Notes, as may be appropriate in
the circumstances, and such other matters as reasonably
requested in writing by the underwriters; and (iv) deliver such
documents and certificates as may be reasonably requested in
writing by the Holders of a majority in aggregate principal
amount of the Registrable Notes being sold and the managing
underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the
underwriting agreement or other similar agreement entered into
by the Company.
(o) If (1) a Shelf Registration Statement is filed pursuant to
Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required
to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period,
17
make available for inspection by any selling Holder of such
Registrable Notes being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating
in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may
be, or underwriter (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours,
all financial and other records and pertinent corporate
documents of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and
cause the officers, directors and employees of the Company and
its subsidiaries to supply all information reasonably requested
in writing by any such Inspector in connection with such
Registration Statement. Each Inspector shall agree in writing
that it will keep the Records confidential and not disclose any
of the Records unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such
Registration Statement, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction, (iii) the information in such Records is
public or has been made generally available to the public other
than as a result of a disclosure or failure to safeguard by such
Inspector or (iv) disclosure of such information is, in the
reasonable written opinion of counsel for any Inspector,
necessary or advisable in connection with any action, claim,
suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based
upon, related to, or involving this Agreement, or any
transaction contemplated hereby or arising hereunder. Each
selling Holder of such Registrable Notes and each such
Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall
be deemed confidential and shall not be used by it as the basis
for any market transactions in the securities of the Company
unless and until such is made generally available to the public.
Each Inspector, each selling Holder of such Registrable Notes
and each such Participating Broker-Dealer will be required to
further agree that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction,
give notice to the Company and, to the extent practicable, use
its best efforts to allow the Company, at its expense, to
undertake appropriate action to prevent disclosure of the
Records deemed confidential at its expense.
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to the security holders of the Company
with regard to any applicable Registration Statement earning
statements 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) (i)
commencing at the end of any fiscal quarter in which Registrable
Notes are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of
the first fiscal quarter of the Company after the
18
effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(q) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and
substance reasonably satisfactory to the Initial Purchaser),
addressed to the Trustee for the benefit of all Holders
participating in the Exchange Offer or Private Exchange, as the
case may be, to the effect that (i) the Company has duly
authorized, executed and delivered the Exchange Notes or the
Private Exchange Notes, as the case may be, and the Indenture,
(ii) the Exchange Notes or the Private Exchange Notes, as the
case may be, and the Indenture constitute legal, valid and
binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, except as
such enforcement may be subject to customary United States and
foreign exceptions and (iii) all obligations of the Company
under the Exchange Notes or the Private Exchange Notes, as the
case may be, and the Indenture are secured by Liens (as defined
in the Indenture) on the assets securing the obligations of the
Company under the Notes, the Indenture and the Collateral
Agreements to the extent and as discussed in the Registration
Statement.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by the
Holders to the Company (or to such other Person as directed by
the Company) in exchange for the Exchange Notes or the Private
Exchange Notes, as the case may be, the Company shall mark, or
cause to be marked, on such Registrable Notes that the Exchange
Notes or the Private Exchange Notes, as the case may be, are
being issued as substitute evidence of the indebtedness
originally evidenced by the Registrable Notes; provided that in
no event shall such Registrable Notes be marked as paid or
otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Notes and
their respective counsel in connection with any filings required
to be made with the NASD.
(t) Use its best efforts to take all other steps reasonably
necessary to effect the registration of the Registrable Notes
covered by a Registration Statement contemplated hereby.
(u) The Company may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is
being effected to furnish to the Company such information
regarding such seller or Participating Broker-Dealer and the
distribution of such Registrable Notes as the Company may, from
time to time, reasonably request in writing. The Company may
exclude from such registration the Registrable Notes of any
seller who fails to furnish such information within a reasonable
time (which time in no event shall exceed 45 days) after
receiving such request. Each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is
being effected agrees to furnish promptly to the Company all
information required to be disclosed in
19
order to make the information previously furnished by such
seller not materially misleading.
(v) Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or
Exchange Notes to be sold by such Participating Broker-Dealer,
as the case may be, that, upon receipt of any notice from the
Company of the happening of any event of the kind described in
Section 6(e)(ii), 6(e)(iv), 6(e)(v), or 6(e)(vi), such Holder
will forthwith discontinue disposition of such Registrable Notes
covered by a Registration Statement and such Participating
Broker-Dealer will forthwith discontinue disposition of such
Exchange Notes pursuant to any Prospectus and, in each case,
forthwith discontinue dissemination of such Prospectus until
such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 6(k), or until it is advised in writing (the "Advice")
by the Company that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or
supplements thereto and, if so directed by the Company, such
Holder or Participating Broker-Dealer, as the case may be, will
deliver to the Company all copies, other than permanent file
copies, then in such Holder's or Participating Broker-Dealer's
possession, of the Prospectus covering such Registrable Notes
current at the time of the receipt of such notice. In the event
the Company shall give any such notice, the Applicable Period
shall be extended by the number of days during such periods from
and including the date of the giving of such notice to and
including the date when each Participating Broker-Dealer shall
have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 6(k) or (y) the Advice.
7. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by
the Company, whether or not the Exchange Offer or a Shelf
Registration Statement is filed or becomes effective, including,
without limitation, (i) all registration and filing fees,
including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with any
underwritten offering and (B) fees and expenses of compliance
with state securities or Blue Sky laws as provided in Section
6(h) hereof (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky
qualifications of the Registrable Notes or Exchange Notes and
determination of the eligibility of the Registrable Notes or
Exchange Notes for investment under the laws of such
jurisdictions (x) where the Holders are located, in the case of
the Exchange Notes, or (y) as provided in Section 6(h), in the
case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii)
printing expenses, including, without limitation, expenses of
printing Prospectuses if the printing of Prospectuses is
requested by the managing underwriter or underwriters, if any,
or by the Holders of a majority in aggregate principal amount of
the Registrable Notes included in any Registration Statement or
by any Participating Broker-
20
Dealer during the Applicable Period, as the case may be, (iii)
messenger, telephone and delivery expenses incurred in
connection with the performance of their obligations hereunder,
(iv) fees and disbursements of counsel for the Company and,
subject to Section 7(b), the Holders, (v) fees and disbursements
of all independent certified public accountants referred to in
Section 6 (including, without limitation, the expenses of any
special audit and "cold comfort" letters required by or incident
to such performance), (vi) rating agency fees and the fees and
expenses incurred in connection with the listing of the
Securities to be registered on any securities exchange, (vii)
Securities Act liability insurance, if the Company desires such
insurance, (viii) fees and expenses of all other Persons
retained by the Company, (ix) fees and expenses of any
"qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to Section 3 of
Schedule E to the bylaws of the NASD, but only where the need
for such a "qualified independent underwriter" arises due to a
relationship with the Company, (x) internal expenses of the
Company (including, without limitation, all salaries and
expenses of officers and employees of the Company performing
legal or accounting duties), (xi) the expense of any annual
audit, (xii) the fees and expenses of the Trustee and the
Exchange Agent and (xiii) the expenses relating to printing,
word processing and distributing all Registration Statements,
underwriting agreements, securities sales agreements, indentures
and any other documents necessary in order to comply with this
Agreement.
(b) The Company shall reimburse the Holders for the reasonable fees
and disbursements of not more than one counsel chosen by the
Holders of a majority in aggregate principal amount of the
Registrable Notes to be included in any Registration Statement.
The Company shall pay all documentary, stamp, transfer or other
transactional taxes attributable to the issuance or delivery of
the Exchange Notes or Private Exchange Notes in exchange for the
Notes; provided that the Company shall not be required to pay
taxes payable in respect of any transfer involved in the
issuance or delivery of any Exchange Note or Private Exchange
Note in a name other than that of the Holder of the Note in
respect of which such Exchange Note or Private Exchange Note is
being issued. The Company shall reimburse the Holders for fees
and expenses (including reasonable fees and expenses of counsel
to the Holders) relating to any enforcement of any rights of the
Holders under this Agreement.
8. Indemnification
(a) Indemnification by the Company. The Company agrees to indemnify
and hold harmless each Holder of Registrable Notes, Exchange
Notes or Private Exchange Notes and each Participating
Broker-Dealer selling Exchange Notes during the Applicable
Period, each Person, if any, who controls each such Holder
(within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act) and the officers, directors
and partners of each such Holder, Participating Broker-Dealer
and controlling person, to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, costs
(including, without limitation, reasonable costs of preparation
and reasonable attorneys' fees as provided in this
21
Section 8) and expenses (including, without limitation,
reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of
the foregoing) (collectively, "Losses"), as incurred, directly
or indirectly caused by, related to, based upon, arising out of
or in connection with any untrue statement or alleged untrue
statement of a material fact contained in any Registration
Statement, Prospectus or form of prospectus, or in any amendment
or supplement thereto, or in any preliminary prospectus, or any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading, except insofar as such Losses
result solely from information relating to such Holder or
Participating Broker-Dealer and furnished in writing to the
Company (or reviewed and approved in writing) by such Holder or
Participating Broker-Dealer or their counsel expressly for use
therein; provided, however, that the Company will not be liable
to any Indemnified Party (as defined below) under this Section 8
to the extent Losses were solely caused by an untrue statement
or omission or alleged - untrue statement or omission that was
contained or made in any preliminary prospectus and corrected in
the Prospectus or any amendment or supplement thereto if (i) the
Prospectus does not contain any other untrue statement or
omission or alleged untrue statement or omission of a material
fact that was the subject matter of the related proceedings,
(ii) any such Losses resulted from an action, claim or suit by
any Person who purchased Registrable Notes or Exchange Notes
which are the subject thereof from such Indemnified Party and
(iii) it is established in the related proceeding that such
Indemnified Party failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or
prior to the confirmation of the sale of such Registrable Notes
or Exchange Notes sold to such Person if required by applicable
law, unless such failure to deliver or provide a copy of the
Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 6 of this Agreement.
The Company also agrees to indemnify underwriters, selling
brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers,
directors, agents and employees and each Person who controls
such Persons (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) to the same extent as
provided above with respect to the indemnification of the
Holders or the Participating Broker-Dealer.
(b) Indemnification by Xxxxxx. In connection with any Registration
Statement, Prospectus or form of prospectus, any amendment or
supplement thereto, or any preliminary prospectus in which a
Holder is participating, such Holder shall furnish to the
Company in writing such information as the Company reasonably
requests for use in connection with any Registration Statement,
Prospectus or form of prospectus, any amendment or supplement
thereto, or any preliminary prospectus and shall indemnify and
hold harmless the Company, its directors and each Person, if
any, who controls the Company (within the meaning of Section 15
of the Securities Act and Section 20(a) of the Exchange Act),
and the directors, officers and partners of such controlling
persons, to the fullest extent lawful, from and against all
Losses arising out of or based upon any untrue statement or
alleged
22
untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of prospectus or in
any amendment or supplement thereto or in any preliminary
prospectus, or any omission or alleged omission to state therein
a 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 to the extent, but
only to the extent, that such losses are finally judicially
determined by a court of competent jurisdiction in a final,
unappealable order to have resulted solely from an untrue
statement or alleged untrue statement of a material fact or
omission or alleged omission of a material fact contained in or
omitted from any information so furnished in writing by or on
behalf of such Holder to the Company expressly for use therein.
Notwithstanding the foregoing, in no event shall the liability
of any selling Holder be greater in amount than such Holder's
Maximum Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any proceeding shall
be brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party or parties from which such indemnity
is sought (the "Indemnifying Party" or "Indemnifying Parties",
as applicable) in writing; provided, that the failure to so
notify the Indemnifying Parties shall not relieve the
Indemnifying Parties from any obligation or liability except to
the extent (but only to the extent) that it shall be finally
determined by a court of competent jurisdiction (which
determination is not subject to appeal) that the Indemnifying
Parties have been prejudiced materially by such failure.
The Indemnifying Party shall have the right, exercisable by giving
written notice to an Indemnified Party, within 20 Business Days after receipt of
written notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party).
23
No Indemnifying Party shall be liable for any settlement of any such
proceeding effected without its written consent, which shall not be unreasonably
withheld, but if settled with its written consent, or if there be a final
judgment for the plaintiff in any such proceeding, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an Indemnified Party or is
insufficient to hold such Indemnified Party harmless for any
Losses in respect of which this Section 8 would otherwise apply
by its terms (other than by reason of exceptions provided in
this Section 8), then each applicable Indemnifying Party, in
lieu of indemnifying such Indemnified Party, shall have a joint
and several obligation to contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses, in
such proportion as is appropriate to reflect the relative fault
of the Indemnifying Party, on the one hand, and such Indemnified
Party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as
any other relevant equitable considerations. The relative fault
of such Indemnifying Party, on the one hand, and Indemnified
Party, on the other hand, shall be determined by reference to,
among other things, whether any untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by such
Indemnifying Party or Indemnified Party, and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent any such statement or
omission. The amount paid or payable by an Indemnified Party as
a result of any Losses shall be deemed to include any legal or
other fees or expenses incurred by such party in connection with
any proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification
provided for in Section 8(a) or 8(b) was available to such
party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by another method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Notes or Exchange Notes over
(ii) the aggregate amount of damages that such Holder 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. The Holders' obligations to contribute
24
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of the Registrable Securities held by each Holder hereunder and
not joint.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
9. Rules 144 and 144A
The Company covenants that it shall (a) file the reports required to be
filed by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Registrable Notes,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Notes without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company shall deliver to such Xxxxxx a written statement as
to whether it has complied with such information and requirements.
10. Underwritten Registrations of Registrable Notes
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes to be included in such offering; provided, however, that such
investment banker or investment bankers and manager or managers must be
reasonably acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
11. Miscellaneous
(a) Remedies. In the event of a breach by the Company of any of its
obligations under this Agreement, each Holder, in addition to
being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchaser, in the
Purchase Agreement, or granted by law, including recovery of
damages, will be entitled to specific performance of its rights
under this Agreement. The Company agrees that monetary damages
would not be adequate compensation for any loss incurred by
reason of a breach by the Company of any of the provisions of
this Agreement and hereby further agrees that, in the event of
any action for specific performance in respect of such breach,
the Company shall waive the defense that a remedy at law would
be adequate.
25
(b) No Inconsistent Agreements. The Company has not entered, as of
the date hereof, and the Company shall not enter, after the date
of this Agreement, into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the
Holders of Securities in this Agreement or otherwise conflicts
with the provisions hereof. The Company has not entered and will
not enter into any agreement with respect to any of its
securities that will grant to any Person piggy-back rights with
respect to a Registration Statement.
(c) Adjustments Affecting Registrable Notes. The Company shall not,
directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the
ability of the Holders to include such Registrable Notes in a
registration undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given,
otherwise than with the prior written consent of the Holders of
not less than a majority in aggregate principal amount of the
then outstanding Registrable Notes in circumstances that would
adversely affect any Holders of Registrable Notes; provided,
however, that Section 8 and this Section 11(d) may not be
amended, modified or supplemented without the prior written
consent of each Holder. 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 Notes whose securities are being tendered pursuant
to the Exchange Offer or sold pursuant to a Notes Registration
Statement and that does not directly or indirectly affect,
impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority
in aggregate principal amount of the Registrable Notes being
tendered or being sold by such Holders pursuant to such Notes
Registration Statement.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Securities or to any Participating
Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may
be, set forth on the records of the registrar of the
Notes, with a copy in like manner to the Initial
Purchaser as follows:
Xxxxxxxxx & Company, Inc.
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
26
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 11(e)(i);
(iii) if to the Company, as follows:
American Rock Salt Company LLC
0000 Xxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx Beach LLP
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; three Business Days
after being deposited in the United States mail, postage prepaid, if mailed; one
Business Day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of
each of the parties hereto, including, without limitation and
without the need for an express assignment, subsequent Holders
of Securities.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the
same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the
meaning hereof.
27
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAW. THE COMPANY HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW
YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITS AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT
MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. THE COMPANY IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION
OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO THE COMPANY AT ITS SAID
ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH
MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY HOLDER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE
COMPANY IN ANY OTHER JURISDICTION.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction 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, 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 is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or
unenforceable.
(k) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of
Securities is required hereunder, Securities held by the Company
or its affiliates (as such term is defined in Rule
28
405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the
Holders of such required percentage.
(l) Third Party Beneficiaries. Holders and Participating
Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, is
intended by the parties as a final and exclusive statement of
the agreement and understanding of the parties hereto in respect
of the subject matter contained herein and therein and any and
all prior oral or written agreements, representations, or
warranties, contracts, understanding, correspondence,
conversations and memoranda between the Initial Purchaser on the
one hand and the Company on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates,
predecessors in interest or successors in interest with respect
to the subject matter hereof and thereof are merged herein and
replaced hereby.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
AMERICAN ROCK SALT COMPANY LLC
By: /s/ Xxxx X. Xxxxx
------------------------
Name: Xxxx X. Xxxxx
Title: Vice Chairman
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxx X. Xxxxx
----------------------------
Name: Xxxx X. Xxxxx
Title: Managing Director
Registration Rights Agreement
