Execution Copy
PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT
Dated as of March 30, 1998
by and among
MMH HOLDINGS, INC.,
and
CIBC XXXXXXXXXXX CORP.
as Initial Purchaser
57,710 Shares
of
12% Series A Senior Exchangeable Preferred Stock
TABLE OF CONTENTS
Page
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1. DEFINITIONS...............................................................1
2. EXCHANGE OFFER............................................................4
3. SHELF REGISTRATION........................................................7
(a) INITIAL SHELF REGISTRATION.........................................7
(b) SUBSEQUENT SHELF REGISTRATIONS.....................................8
(c) SUPPLEMENTS AND AMENDMENTS.........................................8
4. ADDITIONAL DIVIDENDS......................................................9
5. REGISTRATION PROCEDURES..................................................10
6. REGISTRATION EXPENSES....................................................19
7. INDEMNIFICATION..........................................................20
8. RULES 144 AND 144A.......................................................23
9. UNDERWRITTEN REGISTRATIONS...............................................23
10. MISCELLANEOUS...........................................................24
(a) REMEDIES..........................................................24
(b) ENFORCEMENT.......................................................24
(c) NO INCONSISTENT AGREEMENTS........................................24
(d) ADJUSTMENTS AFFECTING REGISTRABLE PREFERRED STOCK.................24
(e) AMENDMENTS AND WAIVERS............................................25
(f) NOTICES...........................................................25
(g) SUCCESSORS AND ASSIGNS............................................26
(h) COUNTERPARTS......................................................26
(i) HEADINGS..........................................................26
(j) GOVERNING LAW.....................................................26
(k) SEVERABILITY......................................................26
(l) ENTIRE AGREEMENT..................................................26
(m) PREFERRED STOCK HELD BY THE COMPANY OR ITS AFFILIATES.............26
REGISTRATION OF THE DEBENTURES.........................................26
PREFERRED STOCK REGISTRATION RIGHTS AGREEMENT (the "AGREEMENT") dated as
of March 30, 1998, by and among MMH HOLDINGS, INC., a Delaware corporation (the
"COMPANY ") and CIBC XXXXXXXXXXX CORP. (the "INITIAL PURCHASER").
This Agreement is entered into in connection with the Securities Purchase
Agreement, dated as of March 23, 1998, by and among each of the parties hereto
(the "PURCHASE AGREEMENT").
In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide the rights set forth in this
Agreement for the benefit of the Initial Purchaser. The execution and delivery
of this Agreement is a condition to the Initial Purchaser's obligation to
purchase the securities under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
ACT: The Securities Act of 1933, as amended, and the rules and regulations
of the SEC promulgated thereunder.
ADDITIONAL DIVIDENDS: See Section 4(a).
ADVICE: See the last paragraph of Section 5.
APPLICABLE PERIOD: See Section 2(b).
"BUSINESS DAY": means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the City of New York are
authorized or obligated by law to close.
CERTIFICATE OF DESIGNATION: means the certificate of designation governing
the Preferred Stock.
CLOSING: See the Purchase Agreement.
COMPANY: See the introductory paragraph to this Agreement.
DEBENTURES: means the 12% Senior Subordinated Debentures of the Company
issuable under the Indenture.
EFFECTIVENESS DATE: The 135th 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 PREFERRED STOCK: The shares of 12% Series A Senior Exchangeable
Preferred Stock, par value $.01 per share, of the Company that are identical to
the Preferred Stock in all material respects, except that the provisions
regarding restrictions on transfer shall be modified, as provided in the
Certificate of Designation, and the issuance thereof pursuant to the Exchange
Offer shall have been registered pursuant to an effective Registration Statement
in compliance with the Act.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 60th day after the Issue Date.
FINANCIAL ADVISOR: As defined in the preamble hereof.
GUARANTORS: CMH Material Handling, LLC; EPH Material Handling, LLC
(formerly EPH Distribution & Service, LLC); Harnischfeger Distribution &
Service, LLC; HPH Material Handling, LLC (formerly HPH Distribution & Service,
LLC); Material Handling, LLC; MHE Technologies, Inc.; Xxxxxx Mechanical
Handling, Inc.; MPH Crane, Inc.; NPH Material Handling, Inc. (formerly NPH
Distribution & Service, Inc.); PHME Service, Inc.; PHMH Holding Company;
Hercules S.A. de C.V.; Xxxxxxxxx ULC; Kaverit Steel and Crane ULC; Mondel ULC;
Lowfile Limited; Invercoe Engineering Limited; Butters Engineering Limited; MMH
(Holdings) Limited; Xxxxxx Mechanical Handling Limited; MMH International
Limited; Redcrown, ULC; SPH Crane & Hoist, Inc.; Xxxxxx Material Handling, Ltd.;
Material Handling Equipment Nevada Corporation; MHE Canada, ULC; Xxxxxx Material
Handling, LLC; and 3016117 Nova Scotia ULC.
HOLDER: Any holder of any share of Registrable Preferred Stock.
INDEMNIFIED PERSON: See Section 7(c).
INDEMNIFYING PERSON: See Section 7(c).
INDENTURE: The form of the Indenture, a copy of which is on file with the
Transfer Agent, pertaining to the Debentures.
INITIAL PURCHASER: As defined in the preamble hereof.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 5(o).
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ISSUE DATE: The date on which the original shares of Preferred Stock are
sold to the Initial Purchaser pursuant to the Purchase Agreement.
NASD: See Section 5(t).
PARTICIPANT: See Section 7(a).
PARTICIPATING BROKER-DEALER: See Section 2(b).
PERSON: An individual, corporation, limited liability company,
partnership, joint venture, incorporated or unincorporated association,
joint-stock company, trust, government (or an agency or political subdivision
thereof) or other entity of any kind.
PRIVATE EXCHANGE: See Section 2(b).
PRIVATE EXCHANGE PREFERRED STOCK: See Section 2(b).
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
promulgated under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Preferred Stock 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 paragraphs to this Agreement.
RECORDS: See Section 5(o).
REGISTRABLE PREFERRED STOCK: The Preferred Stock upon original issuance of
the Preferred Stock and at all times subsequent thereto and, if issued, the
Private Exchange Preferred Stock, until in the case of any such Preferred Stock
or any such Private Exchange Preferred Stock, as the case may be, (i) a
Registration Statement covering such Preferred Stock or such Private Exchange
Preferred Stock has been declared effective by the SEC and such Preferred Stock
or such Private Exchange Preferred Stock, as the case may be, have been disposed
of in accordance with such effective Registration Statement, (ii) such Preferred
Stock or such Private Exchange Preferred Stock, as the case may be, are sold in
compliance with Rule 144, (iii) in the case of any share of Preferred Stock, the
Exchange Offer has been consummated, (iv) such Preferred Stock or such Private
Exchange Preferred Stock, as the case may be, cease to be outstanding or (v) two
years have passed from the Issue Date.
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REGISTRATION DEFAULT: See Section 4(a).
REGISTRATION STATEMENT: Any registration statement of the Company,
including, but not limited to, the Exchange Registration Statement, which covers
any of the Registrable Preferred Stock 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 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 of such securities being free of the
registration and prospectus delivery requirements of the Act.
RULE 144A: Rule 144A promulgated under the 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.
RULE 415: Rule 415 promulgated under the 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.
SHELF NOTICE: See Section 2(c).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TRANSFER AGENT: means United States Trust Company of New York.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities are sold to an underwriter for reoffering to the public.
2. EXCHANGE OFFER
(a) Unless not permitted by applicable law or SEC policy, the Company
agrees to use its best efforts to file with the SEC as soon as practicable after
the Closing, but in no event later than the Filing Date, an offer to exchange
(the "EXCHANGE OFFER") any and all of the Preferred Stock for a like aggregate
liquidation preference of Exchange Preferred Stock, except that the Exchange
Preferred Stock shall have been registered pursuant to an effective Registration
Statement under the Act. The Exchange Offer will be registered under the Act on
an appropriate form (the "EXCHANGE REGISTRATION STATEMENT") and will comply with
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all applicable tender offer rules and regulations under the Exchange Act. The
Company agrees to use its best efforts to (x) cause the Exchange Registration
Statement to become effective under the Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for at least 30 days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 60th day
following the date on which the Exchange Registration Statement is declared
effective. Each Holder who participates in the Exchange Offer will be required
to represent that any Exchange Preferred Stock received by it will be acquired
in the ordinary course of its business, that at the time of the consummation of
the Exchange Offer such Holder will have no arrangement or understanding with
any person to participate in the distribution of the Exchange Preferred Stock,
and that such Holder is not an affiliate of the Company within the meaning of
Rule 405 promulgated under the Act or if it is such an affiliate, that it will
comply with the registration and prospectus delivery requirements of the Act, to
the extent applicable. Upon consummation of the Exchange Offer in accordance
with this Section 2, the provisions of this Agreement shall continue to apply,
MUTATIS MUTANDIS, solely with respect to Registrable Preferred Stock that are
Private Exchange Preferred Stock and Exchange Preferred Stock held by
Participating Broker-Dealers (as defined below), and the Company shall have no
further obligation to register Registrable Preferred Stock (other than Private
Exchange Preferred Stock and Exchange Preferred Stock held by Participating
Broker-Dealers) pursuant to Section 3 of this Agreement.
(b) The Company shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
acceptable to the Initial Purchaser, which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 promulgated under the Exchange Act) of Exchange
Preferred Stock received by such broker-dealer in the Exchange Offer (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 the use
of the Prospectus by all persons subject to the prospectus delivery requirements
of the Act, including all Participating Broker-Dealers, and include a statement
describing the means by which Participating Broker-Dealers may resell the
Exchange Preferred Stock.
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
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delivery requirements of the Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Preferred Stock,
PROVIDED that such period shall not exceed 180 days (or such longer period if
extended pursuant to the last paragraph of Section 5) after the date of the
consummation of the Exchange Offer (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial Purchaser
holds any Preferred Stock acquired by it and having, or which are reasonably
likely to be determined to have, the status of an unsold allotment in the
initial distribution, the Company upon the request of such Initial Purchaser
shall, simultaneously with the delivery of the Exchange Preferred Stock in the
Exchange Offer, issue and deliver to such Initial Purchaser, in exchange (the
"PRIVATE EXCHANGE") for the Preferred Stock held by such Initial Purchaser, a
like liquidation preference of preferred stock of the Company, identical in all
material respects to the Exchange Preferred Stock (the "PRIVATE EXCHANGE
PREFERRED STOCK") (and which is issued pursuant to the same certificate of
designation as the Exchange Preferred Stock). The Private Exchange Preferred
Stock shall bear the same CUSIP number as the Exchange Preferred Stock.
Dividends on the Exchange Preferred Stock and any Private Exchange Preferred
Stock will accumulate from (A) the later of (i) the last dividend payment date
on which dividends were paid on the Preferred Stock surrendered in exchange
therefor or (ii) if the Preferred Stock is surrendered for exchange on a date in
a period which includes the record date for a dividend payment date to occur on
or after the date of such exchange and as to which dividends will be paid, the
date of such dividend payment date or (B), if no dividends have been paid on the
Preferred Stock, from the Issue Date.
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 and related documents;
(ii) utilize the services of a depository for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York; and
(iii) permit Holders to withdraw tendered Preferred Stock 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.
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 Preferred Stock tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange; and
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(ii) cancel all Preferred Stock or portions thereof so accepted for
exchange by the Company, and issue to and mail to each holder of Preferred
Stock, shares of Exchange Preferred Stock or Private Exchange Preferred
Stock, as the case may be, equal in liquidation preference to the
Preferred Stock of such Holder so accepted for exchange.
The Exchange Preferred Stock and the Private Exchange Preferred Stock may
be issued under (i) the Certificate of Designation will provide that the
Exchange Preferred Stock will not be subject to the transfer restrictions set
forth in the Certificate of Designation and that the Exchange Preferred Stock,
the Private Exchange Preferred Stock and the Preferred Stock will vote and
consent together (and, in certain circumstances, together with the Company's
Series B Junior Preferred Stock (as defined in the Certificate of Designation)),
to the extent provided by the Certificate of Designation, on all matters as one
class and that neither the Exchange Preferred Stock, the Private Exchange
Preferred Stock nor the Preferred Stock will have the right to vote or consent
as a separate class on any matter.
(c) If (1) prior to the consummation of the Exchange Offer, the Company or
Holders of at least a majority in aggregate liquidation preference of the
Registrable Preferred Stock reasonably determine in good faith that (i) the
Exchange Preferred Stock would not, upon receipt, be tradable by such Holders
which are not affiliates (within the meaning of the Act) of the Company without
restriction under the Act and without restrictions under applicable state
securities laws or (ii) after conferring with counsel, the SEC is unlikely to
permit the consummation of the Exchange Offer prior to 60 days after the
Effectiveness Date, (2) subsequent to the consummation of the Private Exchange,
any holder of the Private Exchange Preferred Stock so requests, or (3) the
Exchange Offer is commenced and not consummated within 180 days of the date of
this Agreement, then the Company shall promptly deliver to the Holders and the
Transfer Agent written notice thereof (the "SHELF NOTICE") and shall file an
Initial Shelf Registration pursuant to Section 3. Following the delivery of a
Shelf Notice to the Holders of Registrable Preferred Stock (in the circumstances
contemplated by clauses (1) and (3) of the preceding sentence), the Company
shall not have any further obligation to conduct the Exchange Offer or the
Private Exchange under this Section 2.
3. SHELF REGISTRATION
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) INITIAL SHELF REGISTRATION. The Company shall prepare and 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 Preferred Stock (the
"INITIAL SHELF REGISTRATION"). The Company shall use its best efforts to file
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with the SEC the Initial Shelf Registration within 30 days of the delivery of
the Shelf Notice. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Preferred Stock for
resale by such Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Company shall not
permit any securities other than the Registrable Preferred Stock to be included
in the Initial Shelf Registration or any Subsequent Shelf Registration (as
defined below). The Company shall use its best efforts to cause the Initial
Shelf Registration to be declared effective under the Act on or prior to the
Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Act until two years from the Issue Date (the "EFFECTIVENESS
PERIOD"), or such shorter period ending when (i) all Registrable Preferred Stock
covered by the Initial Shelf Registration have been sold in the manner set forth
and as contemplated in the Initial Shelf Registration or (ii) a Subsequent Shelf
Registration covering all of the Registrable Preferred Stock has been declared
effective under the Act.
(b) 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 (prior to 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 45 days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected 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
Preferred Stock (a "SUBSEQUENT SHELF REGISTRATION"). In the event that the
Company become eligible to use any form other than Form S-1 for a Subsequent
Shelf Registration, if permitted under applicable law, the Company shall be
entitled to cause a Subsequent Shelf Registration to be substituted for the
Initial Shelf Registration. If a Subsequent Shelf Registration is filed, the
Company shall use its best efforts to cause the Subsequent Shelf Registration to
be declared effective as soon as practicable after such filing and to keep such
Registration Statement continuously effective during the Effectiveness Period.
As used herein the term "SHELF REGISTRATION" means the Initial Shelf
Registration and any Subsequent Shelf Registration.
(c) SUPPLEMENTS AND AMENDMENTS. The Company 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 Act, or if requested by the Holders of a
majority in aggregate liquidation preference of the Registrable Preferred Stock
covered by such Registration Statement or by any underwriter(s) of such
Registrable Preferred Stock.
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4. ADDITIONAL DIVIDENDS
(a) The Company and the Initial Purchaser agree that the Holders of
Registrable Preferred Stock will suffer damages if the Company fails to fulfill
its 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 dividends on the Preferred Stock
("ADDITIONAL DIVIDENDS") under the circumstances set forth below:
(i) if the Exchange Registration Statement has not been filed on or
prior to the Filing Date or the Initial Shelf Registration has not been
filed on or prior to the Filing Date;
(ii) if neither the Exchange Registration Statement nor the Initial
Shelf Registration has been declared effective on or prior to the
Effectiveness Date; and/or
(iii) if either (A), if applicable, the Company has not exchanged
the Exchange Preferred Stock for all Preferred Stock validly tendered in
accordance with the terms of the Exchange Offer on or prior to 45 days
after the date on which the Exchange Registration Statement was declared
effective or (B), if applicable, the Exchange Registration Statement
ceases to be effective at any time prior to the time that the Exchange
Offer is consummated as to all Preferred Stock validly tendered or (C) if
applicable, the Shelf Registration has been declared effective and such
Shelf Registration ceases to be effective at any time prior to the earlier
of the date on which all Registrable Preferred Stock covered by the Shelf
Registration have been sold in the manner set forth and as contemplated in
the Shelf Registration or the second anniversary of the Issue Date;
(each such event referred to in clauses (i) through (iii) above is a
"REGISTRATION DEFAULT"), the sole remedy available to holders of the Preferred
Stock will be the immediate accrual of Additional Dividends as follows: the per
annum dividend rate on the Preferred Stock will increase by 0.5% upon the
occurrence of the first Registration Default; and the per annum dividend rate
will increase by an additional 0.25% for each subsequent 90-day period during
which any Registration Default remains uncured, up to a maximum additional
dividend rate of 2.0% per annum for all Registration Defaults, PROVIDED,
HOWEVER, that (1) upon the filing of the Exchange Registration Statement or the
Initial Shelf Registration (in the case of (i) above), (2) upon the
effectiveness of the Exchange Registration Statement or a Shelf Registration (in
the case of (ii) above) or (3) upon the exchange of Exchange Preferred Stock for
all Preferred Stock tendered (in the case of (iii)(A) above), or upon the
effectiveness of the Exchange Registration Statement which had ceased to remain
effective (in the case of (iii)(B) above), or upon the
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effectiveness of the Shelf Registration which had ceased to remain effective (in
the case of (iii)(C) above), Additional Dividends on the Preferred Stock as a
result of such clause (i), (ii) or (iii) (or the relevant subclause thereof), as
the case may be, shall cease to accumulate and the dividend rate on the
Preferred Stock will revert to the dividend rate originally borne by the
Preferred Stock. Notwithstanding the foregoing, the amount of Additional
Dividends shall not increase because more than one Registration Default has
occurred and is pending.
(b) The Company shall notify the Transfer Agent within one business day
after each and every date on which an event occurs in respect of which
Additional Dividends are required to be paid (an "EVENT DATE"). Any amounts of
Additional Dividends due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semi-annually on each April 1 and October 1 (to the
Holders of record on the March 15 and September 15th immediately preceding such
dates), commencing with the first such date occurring after any such Additional
Dividends commence to accumulate. The amount of Additional Dividends with
respect to each share of Preferred Stock will be determined by multiplying the
applicable Additional Dividend rate by the liquidation preference of such share
of Preferred Stock, multiplied by a fraction, the numerator of which is the
number of days such Additional Dividend rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day months),
and the denominator of which is 360.
5. REGISTRATION PROCEDURES
In connection with the registration of any Registrable Preferred Stock or
Private Exchange Preferred Stock pursuant to Section 2 or 3 hereof, the Company
shall effect such registrations to permit the sale of such Registrable Preferred
Stock or Private Exchange Preferred Stock in accordance with the intended method
or methods of disposition thereof, and pursuant thereto the Company shall:
(a) Prepare and file with the SEC, prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section 2 or
3, and to use its best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein, PROVIDED that, if (1)
such filing is 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 Act by any Participating Broker-Dealer who seeks to sell
Exchange Preferred Stock during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company shall, if requested by any Holders of Registrable Preferred Stock,
furnish to and afford such Holders of the Registrable Preferred Stock and each
such Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, its counsel and the managing underwriters, if any, a
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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 (at least 5 business days prior to such filing).
The Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders must be
afforded an opportunity to review prior to the filing of such document, if the
Holders of a majority in aggregate liquidation preference of the Registrable
Preferred Stock covered by such Registration Statement, or such Participating
Broker-Dealer, as the case may be, their counsel, or the managing
underwriter(s), if any, shall reasonably object;
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration 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) under the
Act; and comply with the provisions of the Act, the Exchange Act and the rules
and regulations of the SEC promulgated thereunder 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 be deemed not to
have used its best efforts to keep a Registration Statement effective during the
Applicable Period if it voluntarily takes any action that would result in
selling Holders of the Registrable Preferred Stock covered thereby or
Participating Broker-Dealers seeking to sell Exchange Preferred Stock not being
able to sell such Registrable Preferred Stock or such Exchange Preferred Stock
during that period unless such action is required by applicable law or unless
the Company complies with this Agreement, including without limitation, the
provisions of clause 5(c)(v) below;
(c) If (1) a Shelf Registration 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 Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, notify the selling Holders of Registrable Preferred Stock, or each such
Participating Broker-Dealer, as the case may be, their counsel and the managing
underwriter(s), if any, promptly (but in any event within two Business Days),
and confirm such notice in writing, (i) when a Prospectus or any prospectus
supplement or post-effective amendment thereto has been filed, and, with respect
to a Registration Statement or any post-effective amendment thereto, 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
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such Registration Statement or post-effective amendment thereto 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 Act to be delivered in connection with sales of
the Registrable Preferred Stock the representations and warranties of the
Company contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) below cease to be true and correct, (iv) of the
receipt by any of 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 Preferred Stock or the Exchange Preferred Stock 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 or any information becoming known to any Issuer 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, 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, and (vi) any
Issuer's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate;
(d) If (1) a Shelf Registration 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 Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, 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 Preferred Stock or the Exchange
Preferred Stock 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 moment;
(e) If a Shelf Registration is filed pursuant to Section 3 and if
reasonably requested by the managing underwriter(s), if
-12-
any, or the Holders of a majority in aggregate liquidation preference of the
Registrable Preferred Stock being sold in connection with an underwritten
offering, (i) promptly incorporate in a Prospectus supplement or post-effective
amendment thereto such information as the managing underwriters), if any, or
such Holders reasonably request to be included therein, (ii) make all required
filings of such Prospectus supplement or such post-effective amendment thereto
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment thereto and (iii), if applicable, supplement or make amendments to
such Registration Statement;
(f) If (1) a Shelf Registration 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 Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, furnish to each selling Holder of Registrable Preferred Stock and to
each such Participating Broker-Dealer who so requests and to counsel and the
managing underwriter(s), if any, without charge, 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) If (1) a Shelf Registration 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 Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, deliver to each selling Holder of Registrable Preferred Stock, or each
such Participating Broker-Dealer, as the case may be, their counsel, and the
managing underwriter or underwriters, if any, without charge, 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 Persons may reasonably request; and, subject to the
last paragraph of this Section 5, the Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Registrable Preferred Stock or each such Participating Broker-Dealer,
as the case may be, and the managing underwriter or underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of the
Registrable Preferred Stock covered by or the sale by Participating
Broker-Dealers of the Exchange Preferred Stock pursuant to such Prospectus and
any amendment or supplement thereto;
(h) Prior to any public offering of Registrable Preferred Stock or any
delivery of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Preferred Stock during
the Applicable
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Period, to use its best efforts to register or qualify, and to cooperate with
the selling Holders of Registrable Preferred Stock or each such Participating
Broker-Dealer, as the case may be, 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 Preferred Stock or Exchange Preferred Stock 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 the managing underwriter
or underwriters, if any, reasonably request in writing, PROVIDED that where
Exchange Preferred Stock held by Participating Broker-Dealers or Registrable
Preferred Stock are offered other than through an underwritten offering, the
Company agrees to cause its counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(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
Preferred Stock held by Participating Broker-Dealers or the Registrable
Preferred Stock covered by the applicable Registration Statement; PROVIDED 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;
(i) If a Shelf Registration is filed pursuant to Section 3, cooperate with
the selling Holders of Registrable Preferred Stock and the managing underwriter
or underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Preferred Stock 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 Preferred Stock to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
reasonably request and which are consistent with the terms of the Certificate of
Designation under which the Registrable Preferred Stock are issued;
(j) Use its best efforts to cause the Registrable Preferred Stock 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 managing underwriter or underwriters, if any, to
consummate the disposition of such Registrable Preferred Stock, except as may be
required solely as a consequence of the nature of such selling Holder's
business, in which case the Company will cooperate in all reasonable respects
with the filing of such Registration
-14-
Statement and the granting of such approvals at such sellers' cost and expense;
(k) If (1) a Shelf Registration 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 Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi) above, as promptly as reasonably practicable prepare and (subject to
Section 5(a) above) 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 Preferred
Stock being sold thereunder or to the purchasers of the Exchange Preferred Stock
to whom such Prospectus will be delivered by a Participating Broker-Dealer
during the Applicable Period, 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 best efforts to cause the Registrable Preferred Stock covered
by a Registration Statement or the Exchange Preferred Stock sold by a
Participating Broker-Dealer during the Applicable Period, as the case may be, to
be rated with the appropriate rating agencies, if so requested by the Holders of
a majority in aggregate liquidation preference of Registrable Preferred Stock
covered by such Registration Statement or the Exchange Preferred Stock, as the
case may be, or the managing underwriter or underwriters, if any;
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Preferred Stock, (i) provide the Transfer Agent with
printed certificates for the Registrable Preferred Stock in a form eligible for
deposit with The Depository Trust Company and (ii) provide a CUSIP number for
the Registrable Preferred Stock;
(n) In connection with an underwritten offering of Registrable Preferred
Stock pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Preferred Stock and take all such other actions as are reasonably requested by
the managing underwriter(s), if any, in order to expedite or facilitate the
registration or the disposition of such Registrable Preferred Stock, and in such
connection, (i) make such representations and warranties to the managing
underwriter or underwriters on behalf of any underwriters, with respect to the
business of the Company and its subsidiaries and the Registration Statement,
Prospectus and documents, if any,
-15-
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, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters, addressed
to the managing underwriter or underwriters covering the matters customarily
covered in opinions requested in underwritten offerings of debt securities and
such other matters as may be reasonably requested by underwriters; (iii) obtain
"cold comfort" letters and updates thereof in form and substance reasonably
satisfactory to the managing underwriter or 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 the managing underwriter or underwriters on behalf of
any 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 and such other matters as reasonably
requested by the managing underwriter or underwriters; and (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in Section 7
hereof (or such other provisions and procedures acceptable to Holders of a
majority in aggregate liquidation preference of Registrable Preferred Stock
covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder;
(o) If (1) a Shelf Registration 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 Act by any Participating
Broker-Dealer who seeks to sell Exchange Preferred Stock during the Applicable
Period, make available for inspection by any selling Holder of such Registrable
Preferred Stock being sold, or each such Participating Broker-Dealer, as the
case may be, the managing underwriter or underwriters participating in any such
disposition of Registrable Preferred Stock, 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 (collectively, the "INSPECTORS"), at the
offices where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and properties 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 in each case reasonably
-16-
requested by any such Inspector in connection with such Registration Statement.
Records which the Company determines, in good faith, to be confidential and any
Records which it notifies the Inspectors are confidential shall not be disclosed
by the Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or material omission in such
Registration Statement and the Company fails to promptly correct such material
misstatement or omission after notice thereof, (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (iii) the information in such Records has been made generally
available to the public other than through the Inspectors' breach of any
confidentiality agreement. Each selling Holder of such Registrable Preferred
Stock and each such Participating Broker-Dealer or underwriter 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 for any purpose other than
discharging due diligence responsibilities. In addition, such information shall
not be used 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
selling Holder of such Registrable Preferred Stock 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 allow the Company to undertake appropriate action to
prevent disclosure of the Records deemed confidential at its expense;
(p) Provide a transfer agent for the Registrable Preferred Stock not later
than the effective date of the Exchange Offer Registration Statement or the
first Registration Statement relating to the Registrable Preferred Stock;
(q) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earnings statements satisfying the
provisions of Section 11(a) of the Act and Rule 158 thereunder (or any similar
rule promulgated under the 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 Preferred Stock 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) Upon consummation of an Exchange Offer or a Private Exchange, obtain
an opinion of counsel to the Company, in a form customary for underwritten
offerings of debt securities similar to the Preferred Stock, addressed to the
Transfer Agent for the benefit of all Holders of Registrable Preferred Stock
participating in the Exchange Offer or the Private Exchange, as
-17-
the case may be, and which includes an opinion that (i) the Company has duly
authorized, executed and delivered the Exchange Preferred Stock and Private
Exchange Preferred Stock and the certificate of designation in respect thereof,
and (ii) each of the Exchange Preferred Stock or the Private Exchange Preferred
Stock, as the case may be, and related certificate of designation constitutes a
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its respective terms (with customary exceptions);
(s) If an Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Registrable Preferred Stock by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange
Preferred Stock or the Private Exchange Preferred Stock, as the case may be, the
Company shall xxxx, or cause to be marked, on such Registrable Preferred Stock
that such Registrable Preferred Stock are being canceled in exchange for the
Exchange Preferred Stock or the Private Exchange Preferred Stock, as the case
may be; and, in no event shall such Registrable Preferred Stock be marked as
paid or otherwise satisfied;
(t) Cooperate with each seller of Registrable Preferred Stock covered by
any Registration Statement and the managing underwriter(s), if any,
participating in the disposition of such Registrable Preferred Stock and its
respective counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD") and any securities
exchange, if any, on which the Registrable Preferred Stock are to be listed; and
(u) Use its best efforts to take all other steps necessary to effect the
registration of the Registrable Preferred Stock covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Preferred Stock 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 Preferred Stock or
Exchange Preferred Stock to be sold by such Participating Broker-Dealer, as the
case may be, as the Company may, from time to time, reasonably request. The
Company may exclude from such registration the Registrable Preferred Stock of
any seller or Participating Broker-Dealer who fails to furnish such information
within a reasonable time after receiving such request.
Each Holder of Registrable Preferred Stock and each Participating
Broker-Dealer agrees by acquisition of such Registrable Preferred Stock or
Exchange Preferred Stock 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 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi), such Holder will forthwith
-18-
discontinue disposition of such Registrable Preferred Stock covered by such
Registration Statement or Prospectus or Exchange Preferred Stock to be sold by
such Holder or Participating Broker-Dealer, as the case may be, until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(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. In the event the
Company shall give any such notice, the Applicable Period shall be extended by
the number of days during such period from and including the date of the giving
of such notice to and including the date when each seller of Exchange Preferred
Stock to be sold by such Participating Broker-Dealer, shall have received (x)
the copies of the supplemented or amended Prospectus contemplated by Section
5(k) or (y) the Advice.
6. 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 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 one underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Preferred Stock or Exchange Preferred
Stock and determination of the eligibility of the Registrable Preferred Stock or
Exchange Preferred Stock for investment under the laws of such jurisdictions (x)
where the Holders of Registrable Preferred Stock are located, in the case of the
Exchange Preferred Stock, or (y) as provided in Section 5(h), in the case of
Registrable Preferred Stock or Exchange Preferred Stock to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Preferred Stock or Exchange Preferred Stock 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, or, in respect of Registrable Preferred Stock or Exchange
Preferred Stock to be sold by any Participating Broker-Dealer during the
Applicable Period, by the Holders of a majority in aggregate liquidation
preference of the Registrable Preferred Stock included in any Registration
Statement or of such Exchange Preferred Stock, as the case may be), (iii)
messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Company and fees and disbursements of special counsel for the
sellers of Registrable Preferred Stock (subject to the provisions of Section
6(b)), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii)
-19-
(including, without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi) rating
agency fees, (vii) Act liability insurance, if the Company desires such
insurance, (viii) fees and expenses of the Transfer Agent (including, without
limitation, fees and disbursements of counsel), (ix) fees and expenses of all
other Persons retained by 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 incurred in connection
with any listing of the securities to be registered on any securities exchange
if the Company elects to list any such securities and (xiii) the expenses
relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, certificates
of designation, the Indenture, and any other documents necessary in order to
comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the Company shall
reimburse the Holders of the Registrable Preferred Stock being registered in
such registration for the reasonable fees and disbursements of not more than one
counsel (in addition to appropriate local counsel) chosen by the Holders of a
majority in aggregate liquidation preference of the Registrable Preferred Stock
to be included in such Registration Statement and other reasonable out-of-pocket
expenses of the Holders of Registrable Preferred Stock incurred in connection
with the registration of the Registrable Preferred Stock. The Company shall not
have any obligation to pay any underwriting fees, discounts or commissions
attributable to the sale of Registrable Preferred Stock.
7. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder of
Registrable Preferred Stock and each Participating Broker-Dealer selling
Exchange Preferred Stock during the Applicable Period, the officers and
directors of each such person, and each person, if any, who controls any such
person within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act (each, a "PARTICIPANT"), from and against any and all losses,
claims, damages and liabilities (including, without limitation, the reasonable
legal fees and other expenses incurred in connection with any suit, action or
proceeding or any claim asserted) caused by, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or any preliminary
Prospectus, or caused by, arising out of or based upon 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
-20-
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information relating to
any Participant or underwriter furnished to the Company in writing by such
Participant or underwriter expressly for use therein.
(b) Each Participant will be required to agree, severally and not jointly,
to indemnify and hold harmless the Company, its directors and officers and each
person who controls any such person within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Company to each Participant, but only with reference to information
relating to such Participant furnished to the Company in writing by such
Participant expressly for use in any Registration Statement or Prospectus, any
amendment or supplement thereto, or any preliminary Prospectus. The liability of
any Participant under this paragraph (b) shall in no event exceed the proceeds
received by such Participant from sales of Registrable Preferred Stock giving
rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either
paragraph (a) or (b) of this Section 7, such person (the "INDEMNIFIED PERSON")
shall promptly notify the person against whom such indemnity may be sought (the
"INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon request of
the Indemnified Person, shall retain one counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses incurred by such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed in writing to the contrary,
(ii) the Indemnifying Person has failed within a reasonable time to retain
counsel reasonably satisfactory to the Indemnified Person or (iii) the named
parties in any such proceeding (including any impleaded parties) include both
the Indemnifying Person and the Indemnified Person and representations of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Person
shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate law
firm (in addition to any local counsel) for all Indemnified Persons, and that
all such fees and expenses shall be reimbursed as they are incurred. Any such
separate firm for the Participants and such control persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Preferred Stock
-21-
sold by all such Participants and any such separate firm for the Company, its
directors, its officers and such control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses incurred by counsel as contemplated by
the third sentence of this paragraph, the Indemnifying Person agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such Indemnifying Person of the aforesaid request and (ii) such
Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Person is or could have been a party, unless such
settlement includes an unconditional release of such Indemnified Person from all
liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in paragraphs (a) and (b) of this
Section 7 is unavailable to an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect the relative fault of the Company on the
one hand and the Participants on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative fault of the
Company on the one hand and the Participants on the other 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 Company or by the Participants and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The parties shall agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by PRO RATA allocation
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding
-22-
paragraph. The amount paid or payable by an Indemnified Person as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Preferred
Stock or Exchange Preferred Stock exceeds the amount of any damages that such
Participant 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 Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 7 will
be in addition to any liability which the Indemnifying Persons may otherwise
have to the Indemnified Persons referred to above.
8. RULES 144 AND 144A
The Company covenants that it will file the reports required to be filed
by it under the Act and the Exchange Act and the rules and regulations adopted
by the SEC thereunder in a timely manner and, if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Preferred Stock, make publicly available other information of a like
nature until no longer necessary to permit sales pursuant to Rule 144 or Rule
144A. The Company further covenants that so long as any Registrable Preferred
Stock remain outstanding and the Company is not required to make filings
pursuant to Section 13(d) or 15 of the Exchange Act to make available to any
Holder of Registrable Preferred Stock in connection with any sale thereof, the
information required by Rule 144A(d)(4) under the Act in order to permit resales
of such Registrable Preferred Stock pursuant to (a) such Rule 144A, or (b) any
similar rule or regulation hereafter adopted by the SEC, unless at such time the
Registrable Preferred Stock are fully saleable under Rule 144 or any successor
provision.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Preferred Stock covered by any Shelf
Registration is 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 liquidation preference of
such Registrable Preferred Stock included in such offering and shall be
reasonably acceptable to the Company.
-23-
No Holder of Registrable Preferred Stock may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Preferred Stock 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 reasonably
required under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company of any of its
obligations under this Agreement, other than the occurrence of an event which
requires payment of Additional Dividends, each Holder of Registrable Preferred
Stock, in addition to being entitled to exercise all rights provided herein, in
the Certificate of Designation 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 them of any of the provisions of this
Agreement and hereby further agree that, in the event of any action for specific
performance in respect of such breach, they shall waive the defense that a
remedy at law would be adequate.
(b) ENFORCEMENT. The Transfer Agent shall be authorized to enforce the
provisions of this Agreement for the ratable benefit of the Holders.
(c) NO INCONSISTENT AGREEMENTS. The Company does not have, as of the date
hereof, and the Company shall not, after the date of this Agreement, enter into,
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Registrable Preferred Stock 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 which will grant to any Person piggyback rights with respect to a
Registration Statement.
(d) ADJUSTMENTS AFFECTING REGISTRABLE PREFERRED STOCK. The Company shall
not, directly or indirectly, take any action with respect to the Registrable
Preferred Stock as a class that would adversely affect the ability of the
Holders of Registrable Preferred Stock to include such Registrable Preferred
Stock in a registration undertaken pursuant to this Agreement.
(e) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of at
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least a majority of the then outstanding aggregate liquidation preference of
Registrable Preferred Stock. 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 Preferred Stock whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Preferred Stock may be given by Holders of at least a
majority in aggregate liquidation preference of the Registrable Preferred Stock
being sold by such Holders pursuant to such Registration Statement, PROVIDED
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(f) NOTICES. All notices and other communications (including without
limitation any notices or other communications to the Transfer Agent) 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 Registrable Preferred Stock, at the most
current address given by the Transfer Agent to the Company; and
(ii) if to the Company:
Xxxxxx Material Handling, Inc.
000 X. Xxxxxx Xxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, General Counsel
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, LLP
0000 Xxx Xxxxxxxxx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx Xxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: (i) when delivered by hand, if personally delivered; (ii) five business
days after being deposited in the mail, postage prepaid, if mailed; (iii) one
business day after being timely delivered to a next-day air courier; and (iv)
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 transfer agent of
the Preferred Stock.
(g) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the
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need for an express assignment, subsequent Holders of Registrable Preferred
Stock.
(h) 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.
(i) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) 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 WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) 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.
(l) ENTIRE AGREEMENT. This Agreement, together with the Purchase Agreement
and the Certificate of Designation and the Indenture, is intended by the parties
as a final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein.
(m) PREFERRED STOCK HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Preferred Stock is required hereunder, Registrable Preferred Stock held by the
Company or its affiliates (as such term is defined in Rule 405 under the Act)
shall not be deemed outstanding for such purpose and shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
(n) REGISTRATION OF THE DEBENTURES. In the event that the Company effects
an exchange of the Preferred Stock for the Debentures prior to the consummation
of the Exchange Offer in accordance with Section 2 hereof, the provisions of
this agreement shall continue to apply, MUTATIS MUTANDIS, with respect
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to the Debentures, including any Debentures held by Participating
Broker-Dealers, provided, however, that references to the Transfer Agent shall
apply to the trustee under the Indenture, and provided, further, that in
connection with any such registration, the Company shall cause the Indenture to
be qualified under the Trust Indenture Act of 1939, as amended (the "TIA") not
later than the effective date of the registration statement relating to the
Debentures; and in connection therewith, cooperate with the trustee under such
Indenture and the holders of the registrable Debentures, to effect such changes
to such Indenture as may be required for such Indenture to be qualified in
accordance with the terms of the TIA; and execute, and use its best efforts to
cause the trustee to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable such Indenture to be qualified in a timely manner.
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IN WITNESS WHEREOF, the parties have executed this Preferred Stock
Registration Rights Agreement as of the date first written above.
MMH HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
CIBC XXXXXXXXXXX CORP.
By: /s/ Xxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxx
Title: Managing Director