EXHIBIT 4.6
REGISTRATION RIGHTS AGREEMENT
Dated as of February 20, 2004
Among
ERICO INTERNATIONAL CORPORATION
and
ERICO PRODUCTS, INC.
as Issuers,
and
CVC CAPITAL FUNDING, LLC
as Purchaser
8 7/8% Senior Subordinated Notes due 2012
TABLE OF CONTENTS
Page
----
1. Definitions................................................ 1
2. Exchange Offer............................................. 4
3. Shelf Registration......................................... 5
4. Additional Interest........................................ 7
5. Registration Procedures.................................... 8
6. Registration Expenses...................................... 15
7. Indemnification and Contribution........................... 16
8. Rules 144 and 144A......................................... 20
9. Underwritten Registrations................................. 20
10. Miscellaneous.............................................. 21
-i-
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of February 20, 2004, among ERICO International Corporation, an Ohio
corporation (the "Company"), ERICO Products, Inc. (the "Guarantor", together
with any entity that in the future executes a supplemental indenture pursuant to
which such entity agrees to guarantee the Notes (as hereinafter defined), the
"Guarantors" and, together with the Company, the "Issuers"), and CVC CAPITAL
FUNDING, LLC as purchaser (the "Purchaser").
This Agreement is entered into in connection with the First
Amendment to Purchase Agreement by and among the Issuers and the Purchaser,
dated February 20, 2004 (the "Purchase Agreement"), which provides for, among
other things, the sale by the Company to the Purchaser of $19,400,000 aggregate
principal amount of the Company's 8 7/8% Senior Subordinated Notes due 2012 (the
"Notes"), guaranteed by the Guarantor (the "Guarantee") in exchange for
$19,400,000 aggregate principal amount of 11% Senior Subordinated Notes due 2012
of the Company held by the Purchaser. The Notes and the Guarantee are
collectively referenced to herein as the "Securities." In order to induce the
Purchaser to enter into the Purchase Agreement, the Issuers have agreed to
provide the registration rights set forth in this Agreement for the benefit of
the Purchaser and any subsequent holder or holders of the Securities.
The parties hereby agree as follows:
1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Business Day: Any day that is not a Saturday, Sunday or a day
on which banking institutions in New York are authorized or required by law to
be closed.
Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to any Shelf Registration
Statement, the 180th day after the Filing Date with respect thereto; provided,
however, that if the Effectiveness Date would otherwise fall on a day that is
not a Business Day, then the Effectiveness Date shall be the next succeeding
Business Day.
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Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2(a) hereof.
Filing Date: With respect to any Registration Statement, the
90th day after the delivery of a Shelf Notice as required pursuant to Section 3
hereof; provided, however, that if the Filing Date would otherwise fall on a day
that is not a Business Day, then the Filing Date shall be the next succeeding
Business Day.
Guarantee: See the introductory paragraphs hereto.
Guarantor: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indenture: The Indenture, dated as of February 20, 2004, by
and among the Issuers and Xxxxx Fargo Bank N.A., as Trustee, pursuant to which
the Notes and the Guarantee are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Information: See Section 5(o) hereof.
Initial Purchaser Registration Rights Agreement: The
Registration Rights Agreement, dated as of February 20, 2004, among the Company,
the Guarantor and Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc.,
ABN AMRO Incorporated, NatCity Investments, Inc. and McDonald Investments Inc.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(o) hereof.
Issue Date: February 20, 2004, the date of original issuance
of the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(r) hereof.
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Notes: The $19,400,000 aggregate principal amount of Notes
referred to in the introductory paragraphs hereto, and up to $10,600,000
aggregate principal amount of Notes that may be issued to the Purchaser under
the Indenture
Participant: See Section 7(a) hereof.
Person: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act and any term sheet filed pursuant to Rule 434
under the Securities Act), as amended or supplemented by any prospectus
supplement, 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 paragraphs hereof.
Purchaser: See the introductory paragraphs hereto.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note (and the related Guarantee) upon
its original issuance and at all times subsequent thereto, until, in each case,
the earliest to occur of (i) a Registration Statement covering such Note has
been declared effective by the SEC and such Note (and the related guarantees),
as the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note (and the related guarantees), as the case
may be, ceases to be outstanding for purposes of the Indenture or (iii) such
Note (and the related guarantees), as the case may be, may be resold without
restriction pursuant to Rule 144(k) (as amended or replaced) under the
Securities Act.
Registration Statement: Any registration statement of the
Issuers that covers any of the Notes (and the related Guarantee) filed with the
SEC under the Securities Act, 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 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
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Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 3 hereof.
Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement
relating to a Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Issuers are sold to an
underwriter for reoffering to the public.
Except as otherwise specifically provided, all references in
this Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. Exchange Offer.
(a) The Issuers shall not be obligated to file with the
SEC a Registration Statement with respect to a registered offer (the "Exchange
Offer") to exchange any and all of the Registrable Notes for a like aggregate
principal amount of debt securities of the Company.
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3. Shelf Registration. After all securities subject to
the Initial Purchaser Registration Rights Agreement cease to be "Registrable
Notes" under such agreement, whether pursuant to an exchange offer as
contemplated by such agreement or otherwise, the Holders of no less than a
majority of the outstanding Registrable Notes (provided that the aggregate
principle amount of such Registrable Notes must be at least $5 million) shall
have the right to provide written notice to the Company (the "Shelf Notice")
requesting the Company to file a Registration Statement to effect the sale of
the Registrable Notes. If at any time a Shelf Notice is delivered, then:
(a) Shelf Registration. The Issuers shall as promptly as
practicable (i) give notice to all Holders of Registrable Notes of receipt of
the Shelf Notice, and each Holder shall have the right, by giving notice to the
Company within 15 days following receipt by it of such notice, to elect to
include such Holder's Registrable Notes in the Registration Statement and (ii)
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
covered by such Shelf Notice (the "Initial Shelf Registration"). The Issuers
shall use their reasonable best efforts to file with the SEC the Initial Shelf
Registration on or prior to the applicable Filing Date. The Initial Shelf
Registration 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 designated by them (including, without limitation, one or more
underwritten offerings). The Issuers shall not permit any securities other than
the Registrable Notes and the Guarantee to be included in the Initial Shelf
Registration or any Subsequent Shelf Registration (as defined below).
The Issuers shall use their reasonable best efforts to cause
the Shelf Registration to be declared effective under the Securities Act on or
prior to the Effectiveness Date and, subject to Section 3(d), to keep the
Initial Shelf Registration continuously effective under the Securities Act for
90 days or such shorter period ending when all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or, if applicable, a Subsequent
Shelf Registration (as may be extended pursuant to the last paragraph of Section
5 hereof, the "Effectiveness Period"); provided, however, that the Effectiveness
Period in respect of the Initial Shelf Registration shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule 174 under the Securities Act and as otherwise
provided herein and shall be subject to reduction to the extent that the
applicable provisions of Rule 144(k) are amended or revised to reduce the two
year holding period set forth therein.
(b) Withdrawal of Stop Orders; Subsequent Shelf
Registrations. If the Initial Shelf Registration or any Subsequent Shelf
Registration ceases to be effective for any reason at any time during the
Effectiveness Period (other than because of the sale of all of the Notes
registered thereunder), the Issuers shall use their reasonable best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of effectiveness amend
such Shelf Registration Statement in
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a manner 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 covered by and not sold under the Initial
Shelf Registration or an earlier Subsequent Shelf Registration (each, a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is filed,
the Issuers shall use their reasonable best efforts to cause the Subsequent
Shelf Registration to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective. As used herein the term "Shelf Registration" means the
Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall
promptly supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Notes (or their counsel) covered by such Registration Statement with
respect to the information included therein with respect to one or more of such
Holders, or by any underwriter of such Registrable Notes with respect to the
information included therein with respect to such underwriter.
(d) Blackout Period. Notwithstanding anything to the
contrary in this Agreement, the Company, upon notice to the Holders of
Registrable Notes, may delay the filing of a Registration Statement or suspend
the use of the Prospectus included in any Registration Statement in the event
that and for a period of time (the "Blackout Period") not to exceed an aggregate
of 60 days in any twelve month period if (1) the Board of Directors of the
Company determines that the disclosure of an event at such time could reasonably
be expected to have a material adverse effect on the business, operations or
prospects of the Company or (2) the disclosure otherwise relates to a material
business transaction which has not been publicly disclosed and the Board of
Directors of the Company determines that any such disclosure would jeopardize
the success of such transaction; provided, that, upon the termination of such
Blackout Period, the Company promptly shall notify the Holders of Registrable
Notes that such Blackout Period has been terminated.
(e) Number of Registrations. The Issuers shall not be
obligated to effect more than two Shelf Registrations pursuant to this
Agreement; provided, however, that each Registration Statement must remain
effective for 90 days or such shorter period ending when all Registrable Notes
covered by such Registration Statement have been sold in the manner set forth
and as contemplated in the Registration Statement.
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4. Additional Interest.
(a) The Issuers and the Purchaser agree that the Holders
will suffer damages if the Issuers fail to fulfill their obligations under
Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuers agree to pay, jointly and
severally, as liquidated damages, additional 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 the Initial Shelf Registration has not been filed
on or prior to the Filing Date applicable thereto or the Issuers are
required to file a Shelf Registration and such Shelf Registration is
not filed on or prior to the Filing Date applicable thereto, then,
commencing on the day after any such Filing Date, Additional Interest
shall accrue on the principal amount of the Notes at a rate of 0.25%
per annum for the first 90 days immediately following such applicable
Filing Date, and such Additional Interest rate shall increase by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period; or
(ii) if (A) the Initial Shelf Registration is not declared
effective by the SEC on or prior to the Effectiveness Date applicable
thereto or (B) the Issuers are required to file a Shelf Registration
and such Shelf Registration is not declared effective by the SEC on or
prior to the Effectiveness Date applicable to such Shelf Registration,
then, commencing on the day after such Effectiveness Date, Additional
Interest shall accrue on the principal amount of the Notes at a rate of
0.25% per annum for the first 90 days immediately following the day
after such Effectiveness Date, and such Additional Interest rate shall
increase by an additional 0.25% per annum at the beginning of each
subsequent 90-day period; or
(iii) if applicable, a Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at any
time during the Effectiveness Period (other than during any Blackout
Period relating to such Shelf Registration and as permitted in the
proviso in Section 5(b)), then Additional Interest shall accrue on the
principal amount of the Notes at a rate of 0.25% per annum for the
first 90 days commencing on the day such Shelf Registration ceases to
be effective and such Additional Interest rate shall increase by an
additional 0.25% per annum at the beginning of each such subsequent
90-day period;
provided, however, (1) that the Additional Interest rate on the Notes may not
accrue under more than one of the foregoing clauses (i) - (iii) at any one time
and at no time shall the aggregate amount of additional interest accruing exceed
in the aggregate 1.5% per annum and (2) Additional Interest shall not accrue
under clause (iii) above during the continuation of a Blackout Period; provided,
further, however, that (1) upon the filing of the applicable Shelf
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Registration as required hereunder (in the case of clause (i) above of this
Section 4), (2) upon the effectiveness of the applicable Shelf Registration
Statement as required hereunder (in the case of clause (ii) of this Section 4),
or (3) upon the effectiveness of the applicable Shelf Registration Statement
which had ceased to remain effective (in the case of (iii) of this Section 4),
Additional Interest on the Notes in respect of which such events relate as a
result of such clause (or the relevant subclause thereof), as the case may be,
shall cease to accrue.
(b) The Issuers shall notify the Trustee within two
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 (a)(i), (a)(ii) or (a)(iii) of this
Section 4 will be payable in cash semiannually on each March 1 and September 1
(to the holders of record on the February 15 and August 15 immediately preceding
such dates), commencing with the first such 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 Registrable 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. No
Additional Interest shall accrue with respect to Notes that are not Registrable
Notes.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes the sole damages that will be
available to Holders of Registrable Notes by reason of the occurrence of any of
the events described in Section 4(a)(i)-(iii) hereof.
5. Registration Procedures.
In connection with the filing of any Registration Statement
pursuant to Section 3 hereof, the Issuers shall effect such registrations to
permit the sale of the 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 Issuers hereunder each
of the Issuers shall:
(a) Prepare and file with the SEC on or prior to the
applicable Filing Date a Registration Statement or Registration Statements as
prescribed by Section 3 hereof, and use its reasonable best efforts to cause
each such Registration Statement to become effective and remain effective as
provided herein; provided, however, that if such filing is pursuant to Section 3
hereof, before filing any Registration Statement or Prospectus or any amendments
or supplements thereto, the Issuers shall furnish to and afford the Holders of
the Registrable Notes covered by such Registration Statement their counsel and
the managing underwriters, if any, 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
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filed (in each case at least five Business Days prior to such filing). The
Issuers shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto if the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, their counsel, or the managing underwriters, if any, shall reasonably
object on a timely basis.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement as may be
necessary to keep such Registration Statement continuously effective for the
Effectiveness Period; 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; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition of all
securities covered by such Registration Statement as so amended or in such
Prospectus as so supplemented; provided that, to the extent relating to a Shelf
Registration Statement, none of the foregoing shall be required during a
Blackout Period. Other than during any Blackout Period with respect to a Shelf
Registration Statement, the Issuers shall be deemed not to have used their
reasonable best efforts to keep a Registration Statement effective if any Issuer
voluntarily takes any action that would result in selling Holders of the
Registrable Notes covered thereby not being able to sell such Registrable Notes
during that period unless such action is required by applicable law or permitted
by this Agreement.
(c) Notify the selling Holders of Registrable Notes,
their counsel and the managing underwriters, if any, promptly (but in any event
within two Business Days), and confirm such notice in writing whereupon the
Purchaser and the Holders shall immediately cease using the Prospectus, (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 under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Issuers, 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 preliminary 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 Issuers contained in
any agreement (including any underwriting agreement) contemplated by Section
5(m) hereof cease to be true and correct, (iv) of the receipt by any Issuer 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 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 or any information becoming known that
makes any statement made in such Registration Statement or related Prospectus or
any document incor-
9
porated 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, 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 not misleading, and that in
the case of 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 the light of the circumstances
under which they were made, not misleading provided, that such notice need not
identify the reasons for such event, condition or information that requires such
exchange in the Registration Statement or Prospectus, and (vi) of the Issuers'
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) Use its reasonable 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 for sale in any jurisdiction, and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order at the
earliest practicable moment.
(e) Subject to Section 3(d), if a Shelf Registration is
filed pursuant to Section 3 and if requested during the Effectiveness Period by
the managing underwriter or underwriters (if any), the Holders of a majority in
aggregate principal amount of the Registrable Notes being sold in connection
with an underwritten offering, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, or counsel for any
of them reasonably request to be included therein, (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 supplement or post-effective amendment, and
(iii) supplement or make amendments to such Registration Statement.
(f) Furnish to each selling Holder of Registrable Notes
and to their respective counsel and each managing underwriter, if any, at the
sole expense of the Issuers, one conformed copy of the Registration Statement or
Registration Statements and each post-effective amendment thereto, including
financial statements and schedules, and, if requested, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits.
(g) Deliver to each selling Holder of Registrable Notes,
their respective counsel, and the underwriters, if any, at the sole expense of
the Issuers, as many copies of the Prospectus or Prospectuses (including each
form of preliminary prospectus) and each amendment or supplement thereto and any
documents incorporated by reference therein as such Per-
10
sons may reasonably request; and, subject to the last paragraph of this Section
5, the Issuers hereby consent to the use of such Prospectus and each amendment
or supplement thereto by each of the selling Holders of Registrable Notes and
the underwriters or agents, if any, and dealers, if any, in connection with the
offering and sale of the Registrable Notes covered by such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes use
its reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Notes the managing underwriter or 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 for offer and sale under the securities or Blue Sky laws of
such jurisdictions within the United States as any selling Holder or the
managing underwriter or underwriters reasonably request in writing; provided,
however, that no Issuer shall 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 excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section
3 hereof, 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, 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 (subject to applicable
requirements contained in the Indenture) and registered in such names as the
managing underwriter or underwriters, if any, or Holders may request a
reasonable period of time prior to sales of the Registrable Notes pursuant to
any Registration Statement.
(j) Use its reasonable best efforts to cause the
Registrable Notes covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter or underwriters, 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 Issuers will cooperate in all respects with the
filing of such Registration Statement and the granting of such approvals.
(k) Except as permitted by the proviso in Section 5(b),
if upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi) hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the sole expense of the Issuers, 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
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purchasers of the Registrable Notes being sold thereunder any 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 the light of the circumstances under which they were made, not
misleading.
(l) Use its reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement to be rated with the
appropriate rating agencies (unless such Notes are already so rated), if so
requested by the Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement or the managing
underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the Registrable
Notes.
(n) In connection with any underwritten offering of
Registrable Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities similar
to the Securities, and take all such other actions as are reasonably requested
by the managing underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Notes and, in such
connection, (i) make such representations and warranties to, and covenants with,
the underwriters with respect to the business of the Issuers (including any
acquired business, properties or entity, if applicable), and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities similar to
the Securities, and confirm the same in writing if and when requested; (ii)
obtain the written opinions of counsel to the Issuers, and written updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten offerings;
(iii) obtain "cold comfort" letters and updates thereof in form, scope and
substance reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Issuers (and, if
necessary, any other independent certified public accountants of the Issuers, or
of any business acquired by the Issuers, for which financial statements and
financial data are, or are required to be, included or incorporated by reference
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 Securities; provided, that such letters will not
be delivered to any such Holder or underwriter that fails to make such
representations as may be reasonably required by such independent certified
public accountants; and (iv) if an underwriting agreement is entered into, the
same shall contain indemnification provisions and procedures no less favorable
to the sellers and underwriters, if any, than
12
those set forth in Section 7 hereof (or such other provisions and procedures
reasonably acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents, if any). The above shall be done at each
closing under such underwriting agreement, or as and to the extent required
thereunder.
(o) Make available for inspection by any Purchaser, any
selling Holder of such Registrable Notes being sold, 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
underwriter (any such Purchaser, Holders, underwriters, attorneys, accountants
or agents, collectively, the "Inspectors"), upon written request, at the offices
where normally kept, during reasonable business hours, all pertinent financial
and other records, pertinent corporate documents and instruments of the Issuers
and subsidiaries of the Issuers (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 Issuers
and any of their respective subsidiaries to supply all information
("Information") reasonably requested by any such Inspector in connection with
such due diligence responsibilities. Each Inspector shall agree in writing that
it will keep the Records and Information confidential and that it will not
disclose any of the Records or Information that any Issuer determines, in good
faith, to be confidential and notifies the Inspectors in writing are
confidential unless (i) the release of such Records or Information is ordered
pursuant to a subpoena or other order from a court of competent jurisdiction,
(ii) disclosure of such Records or Information is necessary or advisable, in the
opinion of counsel for any Inspector, in connection with any action, claim, suit
or proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement or the Purchase Agreement, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder, or (iii) the information in such
Records or Information has been made generally available to the public other
than by an Inspector or an "affiliate" (as defined in Rule 405) thereof;
provided, however, that prior notice shall be provided as soon as practicable to
any Issuer of the potential disclosure of any information by such Inspector
pursuant to clauses (i) or (ii) of this sentence and such Inspector shall allow
the Issuers to undertake appropriate action to prevent disclosure of such
records or Information at the Issuer's expense.
(p) Provide an indenture trustee for the Registrable
Notes and cause the Indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement relating to the Registrable
Notes; and in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such changes (if
any) 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 reasonable
best efforts to cause such 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 such indenture to be so qualified in a timely manner.
13
(q) Comply with all applicable rules and regulations of
the SEC to the extent and so long as they are applicable to the Shelf
Registration and make generally available or otherwise provide to its
securityholders with regard to any applicable Registration Statement, a
consolidated earnings statement 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 fiscal
quarter (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 effective date of a Registration Statement, which statements shall cover
said 12-month periods.
(r) 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 National
Association of Securities Dealers, Inc. (the "NASD").
(s) Use its reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable Notes covered by a
Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to furnish promptly to the Issuers all information required to
be disclosed in order to make the information previously furnished to the
Issuers by such seller not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
14
Each Holder of Registrable Notes agrees by its acquisition of
such Registrable Notes that, upon actual receipt of any notice from the Company
(i) of the happening of any event of the kind described in Section 5(c)(ii),
5(c)(iv), 5(c)(v), or 5(c)(vi) hereof or (ii) of the commencement of a Blackout
Period, such Holder will forthwith discontinue disposition of such Registrable
Notes covered by such Registration Statement or Prospectus to be sold by such
Holder until (x) in the case of the immediately preceding clause (i), such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof, or until it is advised in writing (the
"Advice") by the Issuers that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto or (y)
in the case of the immediately preceding clause (ii) the earlier of (A) 61 days
after the commencement of such Blackout Period and (B) receipt of notice from
the Company that such Blackout Period has ended. In the event that the Issuers
shall give any such notice, the Effectiveness 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 the requirements of the immediately
preceding clause (x) or (y), as the case may be, shall have been met.
6. Registration Expenses.
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers (other than any underwriting
discounts or commissions in the event of an underwritten offering, and the fees
of any counsel retained by or on behalf of the underwriters, and transfer taxes,
if any, related to the sale or disposition of such Holder's Notes pursuant to
any Shelf Registration Statement, which shall be for the expense of the Holders)
shall be borne by the Issuers, whether or not the 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 an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes and determination of the eligibility of the Registrable Notes
for investment under the laws of such jurisdictions as provided in Section 5(h)
hereof, (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes in a form eligible for deposit with
The Depository Trust Company and of printing prospectuses if the printing of
prospectuses is reasonably requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in respect of
Registrable Notes, (iii) messenger, telephone and delivery expenses, (iv) fees
and disbursements of counsel for the Issuers and, in the case of a Shelf
Registration, reasonable fees and disbursements of one special counsel for all
of the sellers of Registrable Notes (exclusive of any counsel retained pursuant
to Section 7 hereof), (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any "cold comfort" letters required by or incident
to such
15
performance), (vi) Securities Act liability insurance, if the Issuers desire
such insurance, (vii) fees and expenses of all other Persons retained by the
Issuers, (viii) internal expenses of the Issuers (including, without limitation,
all salaries and expenses of officers and employees of the Issuers performing
legal or accounting duties), (ix) the expense of any annual audit, (x) any fees
and expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to
printing, word processing and distributing all Registration Statements,
underwriting agreements, indentures and any other documents necessary in order
to comply with this Agreement.
7. Indemnification and Contribution. (a) Each of the
Issuers agree, jointly and severally, to indemnify and hold harmless each Holder
of Registrable Notes and its employees, agents, representatives or affiliates,
and each Person, if any, who controls such Person or its affiliates within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, a
"Participant") against any losses, claims, damages or liabilities to which any
Participant may become subject under the Act, the Exchange Act or otherwise,
insofar as any such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of
any material fact contained in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if any of
the Issuers shall have furnished any amendments or supplements thereto)
or any preliminary prospectus; or
(ii) the omission or alleged omission to state, in any
Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if any of the Issuers shall have furnished any
amendments or supplements thereto) or any preliminary prospectus or any
Application or any other document or any amendment or supplement
thereto, a material fact required to be stated therein or necessary to
make the statements therein not misleading;
and will reimburse, as incurred, the Participant for any reasonable legal or
other expenses incurred by the Participant in connection with investigating,
defending against or appearing as a third-party witness in connection with any
such loss, claim, damage, liability or action; provided, however, (i) the
Issuers will not be liable in any such case to the extent that any such loss,
claim, damage, or liability arises out of or is based upon any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Registration Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or Application or any
amendment or supplement thereto in reliance upon and in conformity with
information relating to any Participant furnished to the Issuers by such
Participant specifically for use therein; and (ii) the Issuers shall not be
liable to any Participant under the indemnity
16
agreement in this subsection (a) with respect to preliminary prospectus to the
extent that any such loss, claim, damage or liability of such Participant
results from the fact that such Participant sold Notes to a Person as to whom it
shall be established that there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (or the Prospectus
as then amended or supplemented if the Issuers shall have furnished such
Participant with such amendment or supplement thereto on a timely basis), in any
case where such delivery is required by applicable law and the loss, claim,
damage or liability of such Participant results from an untrue statement or
omission of a material fact contained in the preliminary prospectus which was
corrected in the Prospectus (or in the Prospectus as then amended or
supplemented if the Issuers shall have furnished such Participant with such
amendment or supplement thereto on a timely basis). The indemnity provided for
in this Section 7 will be in addition to any liability that the Issuers may
otherwise have to the indemnified parties. The Issuers shall not be liable under
this Section 7 for any settlement of any claim or action effected without its
prior written consent, which shall not be unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees
to indemnify and hold harmless the Issuers, their directors, their officers,
employees, agents, representatives or affiliates and each Person, if any, who
controls the Issuers within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Issuers or any such director, officer or controlling person may become
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Application, Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Issuers or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 7 will be in addition to any liability that the
Participants may otherwise have to the indemnified parties. The Participants
shall not be liable under this Section 7 for any settlement of any claim or
action effected without their consent, which shall not be unreasonably withheld.
The Issuers shall not, without the prior written consent of such Participant,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any Participant is or could have been a party, or indemnity
could have been sought hereunder by any Participant, unless such settlement (A)
includes an unconditional written release of the Participants, in form and
substance reasonably satisfactory to the Participants, from all liability on
claims that are the subject matter of such proceeding and (B)
17
does not include any statement as to an admission of fault, culpability or
failure to act by or on behalf of any Participant.
(c) Promptly after receipt by an indemnified party under
this Section 7 of notice of the commencement of any action for which such
indemnified party is entitled to indemnification under this Section 7, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party of the
commencement thereof in writing; but the omission to so notify the indemnifying
party (i) will not relieve it from any liability under paragraph (a) or (b)
above unless and to the extent such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any
event, relieve the indemnifying party from any obligations to any indemnified
party other than the indemnification obligation provided in paragraphs (a) and
(b) above. In case any such action is brought against any indemnified party, and
it notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Notes sold by all such Participants in the case of
paragraph (a) of this Section 7 or the Issuers in the case of paragraph (b) of
this Section 7, representing the indemnified parties under such paragraph (a) or
paragraph (b), as the case may be, who are parties to such action or actions) or
(ii) the in-
18
demnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. All fees and
expenses reimbursed pursuant to this paragraph (c) shall be reimbursed as they
are incurred following receipt of reasonable supporting records or
documentation. After such notice from the indemnifying party to such indemnified
party, the indemnifying party will not be liable for the costs and expenses of
any settlement of such action effected by such indemnified party without the
prior written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 7, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement
provided for in the preceding paragraphs of this Section 7 is unavailable to, or
insufficient to hold harmless, an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Notes or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand,
or the Participants on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the first sentence of
this paragraph (d). Notwithstanding any other provision of this paragraph (d),
no Participant shall be obligated to make contributions hereunder that in the
aggregate exceed the total net gain (if any) received by such Participant in
connection with the sale of the Notes, less the aggregate amount of any damages
that such Participant has otherwise been required to pay by reason of the untrue
or alleged untrue statements or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this paragraph (d), each person, if any, who controls a Participant within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as the Participants, and each director of any
Issuer, each officer, employee, agent, representative or affiliate of any Issuer
and each
19
person, if any, who controls any Issuer within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Issuers.
8. Rules 144 and 144A.
For so long as any Registrable Notes remain outstanding, each
of the Issuers covenants and agrees that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, if at any time
such Issuer is not required to file such reports, such Issuer will, upon the
request of any Holder or beneficial owner of Registrable Notes, make available
such information necessary to permit sales pursuant to Rule 144A. Each of the
Issuers further covenants and agrees, for so long as any Registrable Notes
remain outstanding that it will take such further action as any Holder of
Registrable Notes may reasonably request, all to the extent required from time
to time to enable such holder to sell Registrable Notes without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144(k) under the Securities Act and Rule 144A.
9. Underwritten Registrations.
If any of the Registrable Notes covered by any Shelf
Registration 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 included in such offering and shall be reasonably acceptable
to the Issuers.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder'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.
20
10. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers have not, as
of the date hereof, and the Issuers shall not, after the date of this Agreement,
enter into any agreement with respect to any of their securities that is
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Issuers' other issued
and outstanding securities under any such agreements. The Issuers will not enter
into any agreement with respect to any of their securities which will grant to
any Person piggyback registration rights with respect to any Registration
Statement.
(b) Adjustments Affecting Registrable Notes. Except in
compliance with Section 10(c), the Issuers shall not knowingly, directly or
indirectly, take any action with respect to the Registrable Notes as a class
that would adversely affect the ability of the Holders of Registrable Notes to
include such Registrable Notes in a registration undertaken pursuant to this
Agreement.
(c) 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 (I) the Company, and (II) the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes; provided, however, that Section 7 and this Section 10(c) may
not be amended, modified or supplemented without the prior written consent of
each Holder (including any person who was a Holder of Registrable Notes disposed
of pursuant to any Registration Statement) affected by any such amendment,
modification or supplement. 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 sold pursuant to a Registration Statement may be given by Holders of at
least a majority in aggregate principal amount of the Registrable Notes being
sold pursuant to such Registration Statement.
(d) Notices. All notices and other communications
(including, without limitation, any notices or other communications to the
Trustee) provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes at the most
current address of such Holder, as the case may be, set forth on the
records of the registrar under the Indenture.
21
(ii) if to the Purchaser, at the address as follows:
CVC Capital Funding, LLC
000 Xxxx Xxxxxx,00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
with a copy to:
Xxxxxxxx & Xxxxx LLP
Citigroup Center
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: J. Xxxxxx Xxxxxxxx
(iii) if to the Issuers, at the address as follows:
c/o ERICO International Corporation
00000 Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx
with a copy to:
Xxxxx Day
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
22
(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 hereto and the Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the
Purchase Agreement or the Indenture.
(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 an
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.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD
REQUIRE THE APPLICATION OF ANY OTHER LAW.
(i) 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.
(j) Securities Held by the Issuers or Their Affiliates.
Whenever the consent or approval of Holders of a specified percentage
of Registrable Notes is required hereunder, Registrable Notes held by
the Issuers or their affiliates (as such term is defined in Rule 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.
(k) Third-Party Beneficiaries. Holders of Registrable
Notes are intended third-party beneficiaries of this Agreement, and
this Agreement may be enforced by such Persons.
23
(l) Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, 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,
understandings, correspondence, conversations and memoranda between the Holders
on the one hand and the Issuers 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.
24
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
ERICO INTERNATIONAL CORPORATION
By: /s/ Xxxxxxx X. Xxx
------------------------------------
Name: Xxxxxxx X. Xxx
Title: President
ERICO PRODUCTS, INC.,
as Guarantor
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
Title: General Counsel and Secretary
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
CVC CAPITAL FUNDING, LLC
By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: President
