Exhibit 10.1
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 11, 1998
by and among
PHILIPP BROTHERS CHEMICALS, INC.,
THE GUARANTORS NAMED HEREIN
and
XXXXXXXX & CO. INC.,
as Initial Purchaser
$100,000,000
9 7/8% Senior Subordinated Notes due 2008
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TABLE OF CONTENTS
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Page
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1. Definitions............................................................. 1
2. Exchange Offer.......................................................... 6
3. Shelf Registration...................................................... 11
4. Additional Interest..................................................... 13
5. Registration Procedures................................................. 15
6. Registration Expenses................................................... 26
7. Indemnification......................................................... 27
8. Rules 144 and 144A...................................................... 31
9. Underwritten Registrations.............................................. 32
10. Miscellaneous.......................................................... 32
(a) No Inconsistent Agreements...................................... 32
(b) Adjustments Affecting Registrable Notes......................... 33
(c) Amendments and Waivers.......................................... 33
(d) Notices......................................................... 33
(e) Successors and Assigns.......................................... 34
(f) Counterparts.................................................... 34
(g) Headings........................................................ 34
(h) Governing Law................................................... 34
(i) Severability.................................................... 35
(j) Securities Held by the Company or their
Affiliates.................................................... 35
(k) Third Party Beneficiaries....................................... 35
(l) Attorneys' Fees................................................. 35
(m) Entire Agreement................................................ 00
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XXXXXXXXXXXX RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of June
11, 1998, by and among PHILIPP BROTHERS CHEMICALS, INC., a New York corporation
(the "Company"), the subsidiaries of the Company listed on the signature pages
hereto as guarantors (the "Guarantors") and together with the Company (the
"Issuers"), and XXXXXXXX & CO. INC. (the "Initial Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 5, 1998, among the Company, the Guarantors and the
Initial Purchaser (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchaser of $100,000,000 aggregate principal amount of
the Company's 9 7/8% Senior Subordinated Notes due 2008, guaranteed on a senior
subordinated basis by the Guarantors (the "Notes"). In order to induce the
Initial 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 Initial Purchaser and any subsequent holder or holders of the Notes. The
execution and delivery of this Agreement is a condition to the Initial
Purchaser's obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the following
meanings:
"Additional Interest" shall have the meaning set forth in Section 4(a)
hereof.
"Advice" shall have the meaning set forth in Section 5 hereof.
"Agreement" shall have the meaning set forth in the introductory
paragraphs hereto.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Business Day" shall mean a day that is not a Legal Holiday.
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"Company" shall have the meaning set forth in the preamble of this
Agreement and shall also include the Company's permitted successors and assigns.
"Commission" shall mean the Securities and Exchange Commission.
"Effectiveness Date" shall mean, (i) with respect to the Exchange Offer
Registration Statement, the 180th day after the Issue Date and (ii) with respect
to any other Registration Statement, the 60th day after the Filing Date with
respect thereto, but in no event prior to the 180th day after the Issue Date.
"Effectiveness Period" shall have the meaning set forth in Section 3(a)
hereof.
"Event Date" shall have the meaning set forth in Section 4(b) hereof.
"Exchange Act" shall mean Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer" shall have the meaning set forth in Section 2(a)
hereof.
"Exchange Offer Registration Statement" shall have the meaning set forth
in Section 2(a) hereof.
"Filing Date" shall mean, (A) if no Registration Statement has been
filed by the Issuers pursuant to this Agreement, the 120th day after the Issue
Date; provided, however, that if a Shelf Filing Event shall have occurred within
10 days of the Filing Date, then the Filing Date with respect to the Initial
Shelf Registration shall be the 15th calendar day after the occurrence of the
Shelf Filing Event, but in no event prior to the 120th day after the Issue Date;
and (B) in each other case (which may be applicable notwithstanding the
consummation of the Exchange Offer), the 120th day after the occurrence of the
Shelf Filing Event.
"Holder" shall mean any holder of a Registrable Note or Registrable
Notes.
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"Indemnified Person" shall have the meaning set forth in Section 7(c)
hereof.
"Indemnifying Person" shall have the meaning set forth in Section 7(c)
hereof.
"Indenture" shall mean the Indenture, dated as of June 11, 1998, by and
between the Company, the Guarantors and The Chase Manhattan Bank, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereof.
"Initial Shelf Registration" shall have the meaning set forth in Section
3(a) hereof.
"Inspectors" shall have the meaning set forth in Section 5(n) hereof.
"Issue Date" shall mean June 11, 1998, the date of original issuance of
the Notes.
"Issuers" shall have the meaning set forth in the preamble hereof.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
"Notes" shall have the meaning set forth in the preamble hereof.
"Participant" shall have the meaning set forth in Section 7(a) hereof.
"Participating Broker-Dealer" shall mean any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer or any other person
with similar prospectus delivery requirements for use in connection with any
resale of Exchange Notes.
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"Person" shall mean an individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, firm, government or agency or political subdivision thereof or
other legal entity.
"Private Exchange" shall have the meaning set forth in Section 2(b)
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
2(b) hereof.
"Prospectus" shall mean 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 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" shall have the meaning set forth in the
introductory paragraphs hereof.
"Records" shall have the meaning set forth in Section 5(n) hereof.
"Registrable Notes" shall mean each Note, upon original issuance
thereof, and at all times subsequent thereto, each Exchange Note as to which
Section 2(c)(iv) hereof is applicable upon original issuance and at all times
subsequent thereto and each Private Exchange Note upon original issuance thereof
and at all times subsequent thereto, until in the case of any such Note,
Exchange Note or Private Exchange Note, as the case may be, the earliest to
occur of (i) the date on which any such Note has been exchanged by a person
other than a Participating Broker-Dealer for an Exchange Note (other than with
respect to an Exchange Note as to which Section 2(c)(iv) hereof applies)
pursuant to the Exchange Offer, (ii) with respect to Exchange Notes received by
Participating Broker-Dealers in the Exchange Offer, the earlier of (x) the date
on which such Exchange Note has been sold by such Participating Broker-Dealer by
means of the Prospectus contained in the Exchange Offer Registration Statement
and (y) the date on which the Exchange Offer Registration Statement has been
effective under the Securities Act for a period of 180 days after the date that
the
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Exchange Offer has been consummated, (iii) a Shelf Registration covering such
Note, Exchange Note or Private Exchange Note has been declared effective by the
Commission and such Note, Exchange Note or Private Exchange Note, as the case
may be, has been disposed of in accordance with such effective Shelf
Registration, (iv) the date on which such Note, Exchange Note or Private
Exchange Note, as the case may be, is eligible for distribution to the public
without volume or manner of sale restrictions pursuant to Rule 144(k) or (v) the
date on which such Note, Exchange Note or Private Exchange Note, as the case may
be, ceases to be outstanding for purposes of the Indenture or any other
indenture under which such Exchange Note or Private Exchange Note was issued.
"Registration Statement" shall mean any appropriate registration
statement of the Company and/or the Guarantors covering any of the Registrable
Notes pursuant to the provisions of this Agreement, including, but not limited
to, the Exchange Offer Registration Statement, filed with the Commission under
the Securities Act, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Rule 144" shall mean Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the Commission 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
Securities Act.
"Rule 144A" shall mean Rule 144A promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144) or regulation hereafter adopted by the Commission.
"Rule 415" shall mean Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
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"Shelf Filing Event" shall have the meaning set forth in Section 2(c)
hereof.
"Shelf Registration" shall have the meaning set forth in Section 3(b)
hereof.
"Subsequent Shelf Registration" shall have the meaning set forth in
Section 3(b) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture and the trustee (if
any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"Underwritten registration or underwritten offering" shall mean a
registration in which securities of the Issuers are sold to an underwriter for
reoffering to the public.
Section 2. Exchange Offer
(a) The Issuers shall file with the Commission, no later than the Filing Date, a
Registration Statement (the "Exchange Offer Registration Statement") on an
appropriate registration form 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 notes, guaranteed on a senior subordinated basis by the
Guarantors of the Company (the "Exchange Notes"), that are identical in all
material respects to the Notes except that the Exchange Notes shall contain no
restrictive legend thereon. The Exchange Offer shall comply with all applicable
tender offer rules and regulations under the Exchange Act and other applicable
law. The Issuers shall use their best efforts to (x) cause the Exchange Offer
Registration Statement to be declared effective under the Securities Act on or
before the Effectiveness Date; (y) keep the Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date on which
the Exchange Offer Registration Statement is declared effective; and (z) on or
prior to the 30th day following the date on which the Exchange Offer
Registration Statement is declared effective by the Commission, issue Exchange
Notes for Notes tendered in the Exchange Offer. For purposes of this Section
2(a) only, if after the Exchange Offer Registration Statement is initially
declared effective by the Commission, the Exchange Offer or the issuance of the
Exchange Notes thereunder is interfered with by any stop order, or injunction or
other order of the Commission or any other governmental agency or
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court, the Exchange Offer Registration Statement shall be deemed not to have
become effective for purposes of this Agreement.
Each Holder that participates in the Exchange Offer will be required to
represent to the Issuers in writing (which may be contained in the applicable
letter of transmittal) that (i) any Exchange Notes to be received by it will be
acquired in the ordinary course of its business, (ii) such Holder will have no
arrangement or understanding with any Person to participate in the distribution
of the Exchange Notes in violation of the provisions of the Securities Act,
(iii) that such Holder is not an affiliate of any of the Issuers within the
meaning of the Securities Act or, if such Holder is such an affiliate, that it
will comply with the registration and prospectus delivery requirements of the
Securities Act applicable to it, (iv) if such Holder is not a broker-dealer,
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Notes and (v) if such Holder is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a
result of market-making or other trading activities, that it will deliver a
prospectus in connection with any resale of such Exchange Notes.
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 Notes that are Private Exchange Notes,
Exchange Notes as to which Section 2(c)(iv) is applicable and Exchange Notes
held by Participating Broker-Dealers (as defined), and the Issuers shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes, if required and other than in respect of any Exchange Notes as to which
clause 2(c)(iv) hereof applies) pursuant to Section 3 hereof.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers and the Initial Purchaser acknowledge that the staff of the
Commission has taken the position that any broker-dealer that elects to exchange
Notes that were acquired by such broker-dealer for its own account as a result
of market-making or other trading activities for Exchange Notes in the Exchange
Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter"
within the meaning of the Securities Act and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Notes (other than a resale of an unsold allotment resulting from the
original offering of the Notes).
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The Issuers and the Initial Purchaser also acknowledge that it is the
Commission staff's position that if the Prospectus contained in the Exchange
Offer Registration Statement includes a plan of distribution containing a
statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker- Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating Broker-Dealer
(a "Requesting Participating Broker- Dealer"), the Issuers agree (w) to use
their best efforts to keep the Exchange Offer Registration Statement
continuously effective for a period of up to 180 days after the date on which
the Exchange Registration Statement is declared effective, or such longer period
if extended pursuant to the last paragraph of Section 5 hereof (such period, the
"Applicable Period"), or such earlier date as all Requesting Participating
Broker-Dealers shall have notified the Issuers in writing that such Requesting
Participating Broker-Dealers have resold all Exchange Notes acquired in the
Exchange Offer, (x) to comply with the provisions of Section 5 of this
Agreement, as they relate to the Exchange Offer and the Exchange Offer
Registration Statement, (y) to use reasonable commercial efforts to deliver to
such Requesting Participating Broker-Dealer a "cold comfort" letter of the
independent public accountants of the Issuers and a legal opinion as to matters
reasonably requested by such Requesting Participating Broker-Dealer relating to
the Exchange Offer Registration Statement and the related Prospectus and any
amendments or supplements thereto, and (z) include a plan of distribution in
such Exchange Offer Registration Statement that meets the requirements set forth
in the preceding paragraph. The Initial Purchaser shall have no liability to any
Requesting Participating Broker-Dealer with respect to any request made pursuant
to this Section 2(b).
In connection with the Exchange Offer, the Issuers shall:
(1) mail to each Holder entitled to participate in the
Exchange Offer a copy of the Prospectus forming part of the Exchange
Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;
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(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day
on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations to which it is subject
pertaining to the Exchange Offer.
If, prior to consummation of the Exchange Offer, any Holder (including
the Initial Purchaser) holds any Notes acquired by it that have, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
an initial distribution, or if any Holder is not entitled to participate in the
Exchange Offer, the Issuers upon the request of any such Holder shall
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to any such Holder, in exchange (the "Private Exchange") for
such Notes held by any such Holder, a like principal amount of notes, guaranteed
on a senior subordinated basis by the Guarantors of the Company (the "Private
Exchange Notes"), that are identical in all material respects to the Exchange
Notes.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Notes or portions thereof validly
tendered and not validly withdrawn pursuant to the Exchange Offer and
the Private Exchange;
(2) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes so accepted for exchange; and
(3) issue, cause the Trustee to authenticate and deliver
promptly to each Holder of Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange.
The Exchange Offer and the Private Exchange shall not be subject to any
conditions, other than that (i) the Exchange Offer or Private Exchange, as the
case may be, does not violate applicable law or any applicable interpretation of
the staff of the Commission, (ii) no action or proceeding shall have been
instituted or threatened in any court or by any governmental
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agency which might materially impair the ability of the Issuers to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Issuers and (iii) all governmental approvals shall have been obtained, which
approvals the Issuers deem necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under
(i) the Indenture or (ii) an indenture identical in all material respects to the
Indenture (in either case, with such changes as are necessary to comply with any
requirements of the Commission to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the TIA and
shall provide that the Exchange Notes shall not be subject to the transfer
restrictions set forth in the Indenture. The Indenture or such indenture shall
provide that the Exchange Notes, the Private Exchange Notes and the Notes shall
vote and consent together on all matters as one class and that none of the
Exchange Notes, the Private Exchange Notes or the Notes will have the right to
vote or consent as a separate class on any matter. The Private Exchange Notes
shall bear the same CUSIP number as the Exchange Notes.
(c) If, (i) because of any applicable interpretations of the staff of the
Commission, the Issuers are not permitted to file the Exchange Offer
Registration Statement or to effect the Exchange Offer, (ii) the Exchange Offer
is not consummated within 210 days of the Issue Date, (iii) the Initial
Purchaser so requests with respect to Notes not eligible to be exchanged for
Exchange Notes in the Exchange Offer, (iv) any Holder of a Note notifies the
Issuers that (A) due to a change in law or policy it is not entitled to
participate in the Exchange Offer, (B) due to a change in law or policy it may
not resell Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the Prospectus contained in the Exchange
Offer Registration Statement is not appropriate or available for such resales by
such holder or (C) it owns Notes (including the Initial Purchaser if it holds
Notes as part of an unsold allotment from the original offering of the Notes)
acquired directly from an Issuer or an affiliate of an Issuer or (v) any holder
of Private Exchange Notes so requests after the consummation of the Private
Exchange (each such event referred to in clauses (i) through (v) of this
sentence, a "Shelf Filing Event"), then the Issuers (x) shall promptly deliver
to the Holders and the Trustee written notice thereof in the case of clause (i)
or (ii) and (y) at their own expense shall file a Shelf Registration pursuant to
Section 3 hereof.
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Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the Commission a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Registrable Notes not exchanged in the Exchange
Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(iv) is
applicable (the "Initial Shelf Registration"). The Issuers shall use their best
efforts to file with the Commission the Initial Shelf Registration as promptly
as practicable, but in no event earlier than 120 days after the Issue 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 to be included in the Initial Shelf Registration or any
Subsequent Shelf Registration (as defined below).
The Issuers shall use their best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act on or prior to
the Effectiveness Date and to keep the Initial Shelf Registration continuously
effective under the Securities Act for the period ending on the date which is
two years from the Issue Date, subject to extension pursuant to the last
paragraph of Section 5 hereof (the "Effectiveness Period"), or such shorter
period ending when (i) 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 (ii) a Subsequent Shelf Registration covering all
of the Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration has been declared
effective under the Securities Act; 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; provided, further, that the Issuers may suspend the
effectiveness of a Shelf Registration Statement by written notice to the Holders
for a period not to exceed 60 days in any calendar year if, (i) an event occurs
and is continuing as a result of which the Shelf Registration Statement would,
in the Issuers' good faith judgment, contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading and (ii) (a) the Issuers determine in good faith that
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the disclosure of such event at such time would have a material adverse effect
on the business, operations or prospects of the Company and its subsidiaries,
taken as a whole, or (b) the disclosure otherwise relates to a previously
undisclosed pending material business transaction, the disclosure of which would
impede the Issuers' ability to consummate such transaction.
(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 (other than because of the sale of all of the
securities registered thereunder), the Issuers shall use their best efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall as soon as practicable after such cessation amend the
Initial Shelf Registration in 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
Registration Statement continuously effective until the expiration of 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 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 covered by such
Registration Statement or by any underwriter of such Registrable Notes.
Section 4. Additional Interest
(a) The Issuers and the Initial Purchaser agree that the Holders will suffer
damages if the Issuers fail to fulfill their 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 Issuers agree to pay, as
liquidated damages and not as a penalty, additional interest on the Notes
("Additional Interest") under the circumstances and to the extent
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set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration has been filed on or prior to the applicable
Filing Date or (B) notwithstanding that the Issuers have consummated or
will consummate the Exchange Offer, 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 0.50% per annum for the
first 90 days immediately following each such 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) neither the Exchange Offer Registration Statement nor the
Initial Shelf Registration is declared effective by the Commission on
or prior to the relevant Effectiveness Date or (B) notwithstanding that
the Issuers have consummated or will consummate the Exchange Offer, the
Issuers are required to file a Shelf Registration and such Shelf
Registration is not declared effective by the Commission on or prior to
the Effectiveness Date in respect of 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
0.50% 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 (A) the Issuers have not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the Exchange
Offer on or prior to the 210th day following the Issue Date or (B) the
Exchange Offer Registration Statement or the Shelf Registration is
declared effective but thereafter ceases to be effective at any time
during the Effectiveness Period (except as permitted by Section 10(a)
hereof) for a period of 15 consecutive days without being succeeded
immediately by an additional Exchange Offer Registration Statement or
Shelf Registration Statement, as the case may be, filed and declared
effective, then Additional Interest shall accrue on the principal
amount of the Notes at a rate of 0.50% per annum for the first 90 days
commencing on the (x) 210th day after the Issue Date, in the case of
(A) above, or (y) the 16th day after such Shelf
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Registration ceases to be effective in the case of (B) above, 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, that the Additional Interest rate on the Notes may not exceed
at any one time in the aggregate 1.0% per annum; provided, further, however,
that (1) upon the filing of the applicable Exchange Offer Registration Statement
or the applicable Shelf Registration as required hereunder (in the case of
clause (i) above of this Section 4), (2) upon the effectiveness of the Exchange
Offer Registration Statement or the applicable Shelf Registration Statement as
required hereunder (in the case of clause (ii) of this Section 4), or (3) upon
the exchange of the applicable Exchange Notes for all Notes tendered (in the
case of clause (iii)(A) of this Section 4), or upon the effectiveness of the
applicable Exchange Offer Registration Statement or Shelf Registration Statement
which had ceased to remain effective (in the case of (iii)(B) 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 one Business Day 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 semi-annually on the interest payment dates specified in the Indenture (to
the holders of record as specified in the Indenture), commencing with the first
such interest payment 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.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 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
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with any Registration Statement filed by the Issuers hereunder the Issuers
shall:
(a) Prepare and file with the Commission prior to the applicable Filing
Date, a Registration Statement or Registration Statements as prescribed
by Sections 2 or 3 hereof, and use their best efforts to cause each
such Registration Statement to become effective and remain effective as
provided herein; provided, however, that, if (1) such filing is
pursuant to Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer Registration Statement filed pursuant to Section 2
hereof is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period relating thereto, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Issuers shall furnish to and afford the Holders of the Registrable
Notes covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, 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 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, or any such Participating Broker-Dealer, as the
case may be, their counsel, or the managing underwriters, if any, shall
reasonably object, and shall have no liability or obligation to do so.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or
Exchange Offer Registration Statement, as the case may be, as may be
necessary to keep such Registration Statement continuously effective
for the Effectiveness Period or the Applicable Period, as the case may
be; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with the provisions of
the Securities Act and the Exchange Act applicable to each of 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
-16-
Participating Broker-Dealer covered by any such Prospectus, in each
case, in accordance with the intended methods of distribution set forth
in such Registration Statement or Prospectus, as so amended. The
Issuers shall be deemed not to have used their best efforts to keep a
Registration Statement effective during the Effective Period or the
Applicable Period, as the case may be, relating thereto if the Issuers
voluntarily take any action that would result in selling Holders of the
Registrable Notes covered thereby or Participating Broker-Dealers
seeking to sell Exchange Notes not being able to sell such Registrable
Notes or such Exchange Notes during that period unless such action is
required by applicable law (subject to the last paragraph of Section 5
as it pertains to the events described in Section 5(c)(v) and
5(c)(vi)).
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period relating
thereto, notify the selling Holders of Registrable Notes, or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any, as promptly as possible, and, if
requested by any such Person, confirm such notice in writing, (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 Commission 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 or resales of Exchange
Notes by Participating Broker-Dealers 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 in all material respects, (iv) of the receipt by the
Issuers of any notification with respect to the suspension of the
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qualification or exemption from qualification of a Registration
Statement or any of the Registrable Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction, or the initiation or threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition or any information becoming known to the Issuers 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 light of the circumstances under which they were made, not
misleading, and (vi) of the Issuers 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 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, use
their best efforts to prevent the issuance of any order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer, for sale
in any jurisdiction, and, if any such order is issued, to use their
best efforts to obtain the withdrawal of any such order at the earliest
practicable moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested 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 or any
Participating Broker-Dealer, (i) promptly incorporate in a prospectus
supplement or post-effective amendment such information as
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the managing underwriter or underwriters (if any), such Holders or any
Participating Broker-Dealer (based upon advice of counsel) determine is
reasonably necessary to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Issuers have received notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment; provided, however, that the Issuers shall not
be required to take any action hereunder that would, in the written
opinion of counsel to the Issuers, violate applicable laws, and (iii)
supplement or make amendments to such Registration Statement (based
upon advice of counsel).
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, furnish
to each selling Holder of Registrable Notes and to each such
Participating Broker-Dealer who so requests and to 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) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, deliver
to each selling Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, 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 Persons 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 or each such Participating Broker-Dealer, as the case
may be, and the underwriters or agents, if any, and dealers (if any),
in connection with the offering and sale of the Registrable
-19-
Notes covered by, or the sale by Participating Broker-Dealers of the
Exchange Notes pursuant to, such Prospectus and any amendment or
supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use their best efforts to register or
qualify, and to cooperate with the selling Holders of Registrable Notes
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
Notes 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 reasonably request; provided, however, that where Exchange
Notes held by Participating Broker-Dealers or Registrable Notes are
offered other than through an underwritten offering, the Issuers agree
to cause the Issuers 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 Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided, however, that none of the
Issuers 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
and registered in such names as
-20-
the managing underwriter or underwriters, if any, or Holders may
request at least two Business Days prior to any sale of such
Registrable Notes.
(j) Use their 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 reasonably
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 reasonable respects with the filing of such
Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi)
hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the Commission, 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 purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, 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) 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.
(m) 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 Notes and take
-21-
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
Company and its subsidiaries (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 Notes, and confirm the same in writing if and
when requested; (ii) use their reasonable best efforts to 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 requested in underwritten
offerings; (iii) unless not permitted to be issued under an applicable
Statement of Accounting Standards, use their reasonable best efforts to
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 any subsidiary of the Company or of any business
acquired by any of 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; 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 principal amount of Registrable Notes 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.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is
-22-
required to be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by a representative of any
selling Holder of such Registrable Notes being sold, or each such
Participating Broker-Dealer, as the case may be, and all underwriters
participating in any such disposition of Registrable Notes, if any, and
all attorneys, accountants or other agents retained by any such selling
Holder or each such Participating Broker-Dealer, as the case may be,
(the "Inspector"), at the offices where normally kept, during
reasonable business hours, all financial and other records, pertinent
corporate documents and instruments of the Company and its subsidiaries
(collectively, the "Records") as shall be reasonably necessary to
enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information reasonably requested by such
Inspector in connection with such Registration Statement and
Prospectus. Such Inspector shall agree in writing that it will not
disclose any records that the Issuers determine, in good faith, to be
confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to
avoid or correct a misstatement or omission in such Registration
Statement or Prospectus, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is necessary or
advisable in connection with any action, claim, suit or proceeding,
directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions
contemplated hereby or thereby or arising hereunder or thereunder, or
(iv) the information in such Records has been made generally available
to the public; provided, however, that such Inspector shall take such
actions as are reasonably necessary to protect the confidentiality of
such information (if practicable) to the extent such action is
otherwise not inconsistent with, an impairment of or in derogation of
the rights and interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the first Registration Statement relating to the Registrable Notes;
-23-
and in connection therewith, cooperate with the trustee under any such
indenture and the Holders of the Registrable Notes, to effect such
changes to such indenture as may be required for such indenture to be
so qualified in accordance with the terms of the TIA; and execute, and
use their 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 Commission to enable such
indenture to be so qualified in a timely manner.
(p) Comply in all material respects with all applicable rules and
regulations of the Commission and make generally available to its
securityholders earnings statements satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any
similar rule promulgated under the Securities Act) no later than 45
days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Notes are sold to
underwriters in a firm commitment or best efforts underwritten offering
and (ii) if not sold to underwriters in such an offering, commencing on
the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which statements shall
cover said 12-month periods.
(q) Upon consummation of the Exchange Offer or a Private Exchange, use
their reasonable best efforts to obtain an opinion of counsel to the
Issuers, in a form customary for underwritten transactions, addressed
to the Trustee for the benefit of all Holders of Registrable Notes
participating in the Exchange Offer or the Private Exchange, as the
case may be, that the Exchange Notes or Private Exchange Notes, as the
case may be, and the related indenture constitute legal, valid and
binding obligations of the Issuers, enforceable against each of the
Issuers in accordance with its respective terms, subject to customary
exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, xxxx,
or cause to be marked, on such Registrable Notes that such Registrable
Notes are being cancelled in exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
-24-
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use their reasonable best efforts to take all other steps necessary
or advisable to effect the registration of the Exchange Notes and/or
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 Issuers, 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 Issuers, 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.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon actual receipt
of any notice from the Issuers 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, such
Holder will forthwith
-25-
discontinue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Holder or
Participating Broker-Dealer, as the case may be, until such Holder's or
Participating Broker-Dealer'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. In the event that the Issuers shall give any such notice,
each of the Effectiveness Period and the Applicable Period shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
Section 1. Registration Expenses
All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers shall be borne by the Issuers, whether or not the
Exchange Offer Registration Statement or any Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, 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, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes in a form eligible for deposit with The Depository Trust Company
and of printing prospectuses if the printing of prospectuses is 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 or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
-26-
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers and 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 of the Issuers referred to in Section
5(m)(iii) hereof (including, without limitation, the expenses of any special
audit and "cold comfort" letters required by or incident to such 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 by the Issuers, (x) the
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. Notwithstanding the foregoing or anything to the
contrary, each Holder shall pay all underwriting discounts and commissions of
any underwriters with respect to any Registrable Notes sold by or on behalf of
it.
Section 2. Indemnification
(a) The Issuers agree, jointly and severally, to indemnify and hold harmless
each Holder of Registrable Notes and each Participating Broker-Dealer selling
Exchange Notes 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 Securities 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 actually 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 any amendment thereto) or Prospectus (as amended or
supplemented if the Issuers 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 case of
the Prospectus in the light of the circumstances under which they
-27-
were made, not 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 furnished to the Issuers in writing by or on behalf
of such Participant expressly for use therein; provided, however, that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Participant from whom the Person asserting such losses,
claims, damages or liabilities purchased Registrable Notes if (x) it is
established in the related proceeding that such Participant failed to send or
give a copy of the Prospectus (as amended or supplemented if such amendment or
supplement was furnished to such Participant prior to the written confirmation
of such sale) to such Person with or prior to the written confirmation of such
sale, if required by applicable law, and (y) the untrue statement or omission or
alleged untrue statement or omission was corrected in the Prospectus (as amended
or supplemented if amended or supplemented as aforesaid) and such Prospectus
does not contain any other untrue statement or omission or alleged untrue
statement or omission that was the subject matter of the related proceeding.
(b) Each Participant agrees, severally and not jointly, to indemnify and hold
harmless the Issuers, its directors, its officers and each Person who controls
any Issuer within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent (but on a several, and not joint, basis)
as the foregoing indemnity from the Issuers to each Participant, but only with
reference to information relating to such Participant furnished to the Issuers
in writing by such Participant expressly for use in any Registration Statement
or Prospectus, any amendment or supplement thereto, or any preliminary
prospectus.
(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 of the two
preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Persons against whom such indemnity may be sought (the "Indemnifying
Persons") in writing, and the Indemnifying Persons, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Persons may reasonably designate in such proceeding and shall pay
the fees and expenses actually incurred by such counsel related to such
proceeding; provided, however, that the failure to so notify the Indemnifying
Persons shall not relieve any of them of any obligation or liability which any
of them may have hereunder or
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otherwise except to the extent of a showing of actual prejudice. 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 Persons and the Indemnified
Person shall have mutually agreed to the contrary, (ii) the Indemnifying Persons
shall have failed within a reasonable period of 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 any
Indemnifying Person and the Indemnified Person or any affiliate thereof and
representation of both parties by the same counsel would be inappropriate due to
differing interests between them. It is understood that, unless there exists a
conflict among Indemnified Persons, the Indemnifying Persons shall not, in
connection with any one such proceeding or separate but substantially similar
related proceeding in the same jurisdiction arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed promptly 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 Notes and Exchange Notes sold by all such Participants and shall
be reasonably acceptable to the Issuers and any such separate firm for the
Issuers, their respective directors, their respective officers and such control
Persons of any of the Issuers shall be designated in writing by the Issuers and
shall be reasonably acceptable to the Holders. The Indemnifying Persons shall
not be liable for any settlement of any proceeding effected without its prior
written consent (which consent shall not be unreasonably withheld or delayed),
but if settled with such consent or if there be a final judgment for the
plaintiff for which the Indemnified Person is entitled to indemnification
pursuant to this Agreement, each of the Indemnifying Persons agrees to indemnify
and hold harmless each Indemnified Person from and against any loss or liability
by reason of such settlement or judgment. No Indemnifying Person shall, without
the prior written consent of the Indemnified Persons (which consent shall not be
unreasonably withheld or delayed), effect any settlement or compromise of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement (A) includes an unconditional
written release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of such
Indemnified Person.
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(d) If the indemnification provided for in the first and second paragraphs of
this Section 7 is for any reason unavailable to, or insufficient to hold
harmless, 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 and in
order to provide for just and equitable contribution, 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
(i) the relative benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons 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 Person or Persons on the one hand and the
Indemnified Person or Persons 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) as well as any
other relevant equitable considerations. The relative benefits received by the
Issuers on the one hand and the Participants on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of discounts
and commissions but before deducting expenses) of the Notes received by the
Issuers bears to the total proceeds received by such Participant from the sale
of Registrable Notes or Exchange Notes, as the case may be. 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 such Participant or such other Indemnified Person, as
the case may be, on the other, the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances.
(e) The parties 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 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
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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 Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
Indemnified Person is entitled to indemnification or contribution under this
Section 7 shall be paid by the Indemnifying Person to the Indemnified Person as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Issuers set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Holder or any person who controls a
Holder, any of the Issuers, their respective directors or officers or any person
controlling any of the Issuers, and (ii) any termination of this Agreement.
(g) 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.
Section 3. Rules 144 and 144A
Each of the Issuers covenants that it will use its reasonable best
efforts to 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 Commission
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, it 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 under the Securities Act. Each of the
Issuers further covenants 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 (a)
Rule
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144(k) and Rule 144A under the Securities Act, as such Rules may be amended from
time to time, or (b) any similar rule or regulation hereafter adopted by the
Commission. Notwithstanding the foregoing, nothing in this Section 8 shall be
deemed to require any of the Issuers to register any of its securities pursuant
to the Exchange Act.
Section 4. 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.
Section 5. Miscellaneous
(a) No Inconsistent Agreements. None of the Issuers has, as of the date hereof,
and none of the Issuers shall, 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 Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements. None of the Issuers
has entered and will not enter into any agreement with respect to any of its
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. None of the Issuers shall, 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.
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(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 except pursuant to a written agreement duly
signed and delivered by (I) the Issuers and (II)(A) the Holders of not less than
a majority in aggregate principal amount of the then outstanding Registrable
Notes and (B) in circumstances that would adversely affect the Participating
Broker-Dealers, the Participating Broker-Dealers holding not less than a
majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; provided, however, that Section 7 and this Section
10(c) may not be amended, modified or supplemented except pursuant to a written
agreement duly signed and delivered by each Holder and each Participating
Broker-Dealer (including any person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be,
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 and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being 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 telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or
Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture.
(ii) if to the Issuers, at the address as follows:
Philipp Brothers Chemicals, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Chief Executive Officer
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(iii) if to the Initial Purchaser, as provided in the Purchase
Agreement.
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; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
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.
(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, the
Holders and the Participating Broker-Dealers; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless and to the extent such successor or assign holds
Registrable Notes.
(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 WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION
OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT, AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS. Specified times of day refer to New York City time.
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(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 any of 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 any of the Issuers or any of its
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 and beneficial owners of Registrable
Notes and Participating Broker-Dealers are intended third party beneficiaries of
this Agreement, and this Agreement
may be enforced by such Persons.
(l) Attorneys' Fees. As between the parties to this Agreement, in any action or
proceeding brought to enforce any provision of this Agreement, or where any
provision hereof is validly asserted as a defense, the successful party shall be
entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(m) 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.
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IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
PHILIPP BROTHERS CHEMICALS, INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxxx
Title: Pres.
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The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first above
written.
XXXXXXXX & CO. INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------------
Name: Xxxxxxx X. Xxxx, XX
Title: Director
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Each of the subsidiaries of the Company specified below agrees to become
a party to this Registration Rights Agreement as a Guarantor as of the date
hereof:
CP CHEMICALS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
PHIBRO-TECH, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
MRT MANAGEMENT CORP.
By: MRT Management Corp.,
Managing Member
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
MINERAL RESOURCE TECHNOLOGIES,
L.L.C.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
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PRINCE AGRIPRODUCTS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
PHIBROCHEM, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
PHIBROCHEMICALS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
WESTERN MAGNESIUM CORP.
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
THE PRINCE MANUFACTURING COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
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THE PRINCE MANUFACTURING COMPANY
By: /s/ Xxxxxx Xxxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxxx
Title: V.P.
