Exhibit 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
dated as of June 1, 2004
between
HEADWATERS INCORPORATED
and
XXXXXX XXXXXXX & CO. INCORPORATED,
as representative of the Initial Purchasers
REGISTRATION RIGHTS AGREEMENT dated as of June 1, 2004 between
Headwaters Incorporated, a Delaware corporation (the "Company"), and Xxxxxx
Xxxxxxx & Co. Incorporated, as representative of the several initial purchasers
listed on Schedule I (the "Initial Purchasers") to the Purchase Agreement dated
May 25, 2004 (the "Purchase Agreement") with the Company. In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement. The execution of
this Agreement is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit
as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Securities (as
defined herein) and the beneficial owners from time to time of the Underlying
Common Stock (as defined herein) issued upon conversion of the Securities (each
of the foregoing a "Holder" and together the "Holders"), as follows:
Section 1 . Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
"Additional Interest Amount" has the meaning set forth in Section 2(e)
hereof.
"Affiliate" means, with respect to any specified person, an
"affiliate," as defined in Rule 144, of such person.
"Amendment Effectiveness Deadline" has the meaning set forth in Section
2(d) hereof.
"Business Day" means any day, except a Saturday, Sunday or legal
holiday on which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.
"Common Stock" means the shares of common stock, $0.001 par value per
share, of the Company, and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"Conversion Price" has the meaning assigned such term in the Indenture.
"Deferral Notice" has the meaning set forth in Section 3(h) hereof.
"Deferral Period" has the meaning set forth in Section 3(h) hereof.
"Effectiveness Deadline" has the meaning set forth in Section 2(a)
hereof.
"Effectiveness Period" means the period commencing on the first date
that a Shelf Registration Statement is declared effective under the Securities
Act and ending on the date that all Securities and the Underlying Common Stock
have ceased to be Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline" has the meaning set forth in Section 2(a) hereof.
"Holder" has the meaning set forth in the second paragraph of this
Agreement.
"Indenture" means the Indenture dated as of June 1, 2004 between the
Company and Xxxxx Fargo Bank, N.A., as trustee, pursuant to which the Securities
are being issued.
"Initial Purchasers" means the Initial Purchasers named in Schedule I
to the Purchase Agreement.
"Interest Payment Date" means each June 1 and December 1.
"Issue Date" means the first date of original issuance of the
Securities.
"Liquidated Damages Amount" has the meaning set forth in Section 2(e)
hereof.
"Material Event" has the meaning set forth in Section 3(h) hereof.
"Notice and Questionnaire" means a written notice delivered to the
Company containing substantially the information called for by the Selling
Securityholder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated May 25, 2004 relating to the Securities.
"Notice Holder" means, on any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
"Purchase Agreement" has the meaning set forth in the preamble hereof.
"Prospectus" means a prospectus relating to a Shelf Registration
Statement, as amended or supplemented, and all materials incorporated by
reference in such Prospectus.
"Record Holder" means with respect to any Interest Payment Date
relating to any Securities or Underlying Common Stock as to which any Additional
Interest Amount or Liquidated Damages Amount has accrued, the registered holder
of such Security or Underlying Common Stock on the May 15 or November 15
immediately preceding the Interest Payment Date.
"Registrable Securities" means the Securities until such Securities
have been converted into or exchanged for the Underlying Common Stock and, at
all times subsequent to any such conversion, the Underlying Common Stock and any
securities into or for which such Underlying Common Stock has been converted or
exchanged, and any security issued with respect thereto upon any stock dividend,
split or similar event until, in the case of any such security, (A) the earliest
of (i) its effective registration under the Securities Act and resale in
accordance with a Shelf Registration Statement, (ii) expiration of the holding
period that would be applicable thereto under Rule 144(k) to a sale by a
non-Affiliate of the Company or (iii) its sale to the public pursuant to Rule
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144 (or any similar provision then in force, but not Rule 144A) under the
Securities Act, and (B) as a result of the event or circumstance described in
any of the foregoing clauses (i) through (iii), the legend with respect to
transfer restrictions required under the Indenture is removed or removable in
accordance with the terms of the Indenture or such legend, as the case may be.
"Registration Default" has the meaning set forth in Section 2(e)
hereof.
"Registration Default Period" has the meaning set forth in Section 2(e)
hereof.
"Rule 144" means Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
"Rule 144A" means Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 2?% Convertible Senior Subordinated Notes due
2016 of the Company to be purchased pursuant to the Purchase Agreement,
including any Securities purchased by the Initial Purchasers upon exercise of
their option to purchase additional Securities.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning set forth in Section
2(a) hereof, including amendments to such registration statement, all exhibits
and all materials incorporated by reference in such registration statement.
"Special Counsel" means Shearman & Sterling LLP or one such other
successor counsel as shall be specified by the Holders of a majority of the
Registrable Securities, but which may, with the written consent of the Initial
Purchasers (which shall not be unreasonably withheld), be another nationally
recognized law firm experienced in securities law matters designated by the
Company. For purposes of determining Holders of a majority of the Registrable
Securities in this definition, Holders of Securities shall be deemed to be the
Holders of the number of shares of Underlying Common Stock into which such
Securities are or would be convertible as of the date the consent is requested.
"Trustee" means Xxxxx Fargo Bank, N.A., the Trustee under the
Indenture.
"Underlying Common Stock" means the Common Stock into which the
Securities are convertible or issued upon any such conversion.
Section 2 . Shelf Registration. The Company shall prepare and file or
cause to be prepared and filed with the SEC, as soon as practicable but in any
event by the date (the "Filing Deadline") 90 days after the Issue Date, a
registration statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act registering the resale from
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time to time by Holders of the Registrable Securities (a "Shelf Registration
Statement"). The Shelf Registration Statement shall be on Form S-3 or another
appropriate form permitting registration of the Registrable Securities for
resale by the Holders in accordance with the methods of distribution elected by
the Holders and set forth in the Shelf Registration Statement. In no event will
such methods of distribution take the form of an underwritten offering of the
Registrable Securities without the prior agreement of the Company. The Company
shall use its reasonable best efforts to cause a Shelf Registration Statement to
be declared effective under the Securities Act as promptly as is practicable but
in any event by the date (the "Effectiveness Deadline") that is 180 days after
the Issue Date, and to keep a Shelf Registration Statement continuously
effective under the Securities Act until the expiration of the Effectiveness
Period. Each Holder that became a Notice Holder on or prior to the date ten
Business Days prior to the date the initial Shelf Registration Statement is
declared effective shall be named as a selling securityholder in the initial
Shelf Registration Statement and the related Prospectus in such a manner as to
permit such Holder to deliver the Prospectus to purchasers of Registrable
Securities in accordance with applicable law. None of the Company's
securityholders (other than the Holders) shall have the right to include any of
the Company's securities in a Shelf Registration Statement.
(b) If a Shelf Registration Statement covering resales of the
Registrable Securities ceases to be effective for any reason at any time during
the Effectiveness Period (other than because all securities registered
thereunder shall have been resold pursuant thereto or shall have otherwise
ceased to be Registrable Securities), the Company shall use its reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of such cessation
of effectiveness amend the Shelf Registration Statement in a manner reasonably
expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement so that all
Registrable Securities outstanding as of the date of such filing are covered by
a Shelf Registration Statement. If a new Shelf Registration Statement is filed,
the Company shall use its reasonable best efforts to cause the new Shelf
Registration Statement to become effective as promptly as is practicable after
such filing and to keep the new Shelf Registration Statement continuously
effective until the end of the Effectiveness Period.
(c) The Company shall amend and supplement the Prospectus and amend the
Shelf Registration Statement if required by the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or file a new Shelf Registration Statement, if
required by the Securities Act, or any other documents necessary to name a
Notice Holder as a selling securityholder pursuant to Section 2(d) below.
(d) Each Holder may sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus only in accordance with this
Section 2(d) and Section 3(h). Each Holder wishing to sell Registrable
Securities pursuant to a Shelf Registration Statement and related Prospectus
shall deliver a Notice and Questionnaire to the Company at least three Business
Days prior to any intended distribution of Registrable Securities under the
Shelf Registration Statement. From and after the date the initial Shelf
Registration Statement is declared effective, the Company shall, as promptly as
practicable after the date a Notice and Questionnaire is delivered, and in any
event upon the later of (x) 15 Business Days after such date and (y) five
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Business Days after the expiration of any Deferral Period in effect when the
Notice and Questionnaire is delivered or put into effect within 15 Business Days
of such delivery date:
(i) if required by applicable law, file with the SEC a
post-effective amendment to the Shelf Registration Statement or prepare
and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file a new Shelf Registration Statement or any
other required document so that the Holder delivering such Notice and
Questionnaire is named as a selling securityholder in a Shelf
Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the
Company shall file a post-effective amendment to a Shelf Registration
Statement or shall file a new Shelf Registration Statement, the Company
shall use its reasonable best efforts to cause such post-effective
amendment or new Shelf Registration Statement to be declared effective
under the Securities Act as promptly as is practicable, but in any
event by the date (the "Amendment Effectiveness Deadline") that is 45
days after the date such post-effective amendment or new Shelf
Registration Statement is required by this clause to be filed;
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(d)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any new Shelf Registration
Statement or post-effective amendment filed pursuant to Section
2(d)(i);
provided that if such Notice and Questionnaire is delivered during a Deferral
Period, the Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii) and
(iii) above upon expiration of the Deferral Period in accordance with Section
3(h). Notwithstanding anything contained herein to the contrary, (i) the Company
shall be under no obligation to name any Holder that is not a Notice Holder as a
selling securityholder in any Shelf Registration Statement or related Prospectus
and (ii) the Amendment Effectiveness Deadline shall be extended by up to ten
Business Days from the expiration of a Deferral Period.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if:
(i) a Shelf Registration Statement has not been filed on or
prior to the Filing Deadline,
(ii) a Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness
Deadline,
(iii) the Company has failed to perform its obligations set
forth in Section 2(d)(i) within the time period required therein,
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(iv) a new Shelf Registration Statement or a post-effective
amendment to a Shelf Registration Statement filed pursuant to Section
2(d)(i) has not become effective under the Securities Act on or prior
to the Amendment Effectiveness Deadline,
(v) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant
to Section 3(h) hereof, or
(vi) the number of Deferral Periods in any period exceeds the
number permitted in respect of such period pursuant to Section 3(h)
hereof.
Each event described in any of the foregoing clauses (i) through (vi)
is individually referred to herein as a "Registration Default." For purposes of
this Agreement, each Registration Default set forth above shall begin and end on
the dates set forth in the table set forth below:
Type of
Registration
Default by Clause Beginning Date Ending Date
----------------- -------------- -----------
(i) Filing Deadline the date a Shelf Registration
Statement is filed
(ii) Effectiveness Deadline the date a Shelf Registration
Statement becomes effective
under the Securities Act
(iii) the date by which the Company the date the Company performs
is required to perform its its obligations set forth in
obligations under Section Section 2(d)(i)
2(d)(i)
(iv) the Amendment Effectiveness the date the applicable
Deadline post-effective amendment to a
Shelf Registration Statement
or a new Shelf Registration
Statement becomes effective
under the Securities Act
(v) the date on which the termination of the Deferral
aggregate duration of Deferral Period that caused the limit
Periods in any period exceeds on the aggregate duration of
the number of days permitted Deferral Periods to be
by Section 3(h) exceeded
(vi) the date of commencement of a termination of the Deferral
Deferral Period that causes Period that caused the number
the number of Deferral Periods of Deferral Periods to exceed
to exceed the number permitted the number permitted by
by Section 3(h) Section 3(h)
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For purposes of this Agreement, Registration Defaults shall begin on
the dates set forth in the table above and shall continue until the ending dates
set forth in the table above.
Commencing on (and including) any date that a Registration Default has
begun and ending on (but excluding) the next date on which there are no
Registration Defaults that have occurred and are continuing (a "Registration
Default Period"), the Company shall pay to Record Holders of Registrable
Securities in respect of each day in the Registration Default Period (i)
additional interest in respect of any Security (the "Additional Interest
Amount"), at a rate per annum equal to 0.25% of the aggregate principal amount
of such Security for the first ninety (90) day period immediately following the
occurrence of such Registration Default, and such rate will increase to 0.50%
thereafter or during the additional period the Prospectus is unavailable and
(ii) liquidated damages in respect of each share of Underlying Common Stock that
has been issued on conversion of a Security (the "Liquidated Damages Amount") at
a rate per annum equal to 0.25% of the Conversion Price on such date for the
first ninety (90) day period immediately following the occurrence of such
Registration Default, and such rate will increase to 0.50% of the Conversion
Price thereafter or during the additional period the Prospectus is unavailable,
as the case may be; provided that in the case of a Registration Default Period
that is in effect solely as a result of a Registration Default of the type
described in clause (iii) or (iv) of the preceding paragraph, such Additional
Interest Amount or Liquidated Damages Amount, as applicable, shall be paid only
to the Holders (as set forth in the succeeding paragraph) that have delivered
Notices and Questionnaires that caused the Company to incur the obligations set
forth in Section 2(d), the non-performance of which is the basis of such
Registration Default. In calculating the Liquidated Damages Amount on shares of
Underlying Common Stock on any date on which no Securities are outstanding, the
Conversion Price used shall be based on the Conversion Price that would be in
effect if the Securities were still outstanding. Notwithstanding the foregoing,
no Additional Interest Amount or Liquidated Damages Amount shall accrue as to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Additional Interest Amount or
the Liquidated Damages Amount, as applicable, with respect to any period shall
not exceed the rate provided for in this paragraph notwithstanding the
occurrence of multiple concurrent Registration Defaults. In no event shall the
Additional Interest Amount or the Liquidated Damages Amount exceed a rate of
0.50% per annum.
The Additional Interest Amount or the Liquidated Damages Amount, as
applicable, shall accrue from the first day of the applicable Registration
Default Period, and shall be payable on each Interest Payment Date during the
Registration Default Period (and on the Interest Payment Date next succeeding
the end of the Registration Default Period if the Registration Default Period
does not end on an Interest Payment Date) to the Record Holders of the
Registrable Securities entitled thereto; provided that any Additional Interest
Amount or Liquidated Damages Amount, as applicable, accrued with respect to any
Security or portion thereof redeemed by the Company on a redemption date,
purchased by the Company on a repurchase date or converted into Underlying
Common Stock on a conversion date prior to the Interest Payment Date, shall, in
any such event, be paid instead to the Holder who submitted such Security or
portion thereof for redemption, purchase or conversion on the applicable
redemption date, repurchase date or conversion date, as the case may be, on such
date (or promptly following the conversion date, in the case of conversion),
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unless the redemption date or the repurchase date, as the case may be, falls
after May 15 or November 15 and on or prior to the corresponding Interest
Payment Date; and provided further that, in the case of a Registration Default
of the type described in clause (iii) or (iv) of the first paragraph of this
Section 2(e), such Additional Interest Amount or Liquidated Damages Amount shall
be paid only to the Holders entitled thereto by check mailed to the address set
forth in the Notice and Questionnaire delivered by such Holder. The Trustee
shall be entitled, on behalf of registered holders of Securities or Underlying
Common Stock, to seek any available remedy for the enforcement of this
Agreement, including for the payment of such Additional Interest Amount or
Liquidated Damages Amount. Notwithstanding the foregoing, the parties agree that
the sole damages payable for a violation of the terms of this Agreement with
respect to which additional interest or liquidated damages are expressly
provided shall be such additional interest or liquidated damages. Nothing shall
preclude any Holder from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section 2(e) that
are outstanding with respect to any Registrable Security at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of this Agreement pursuant to Section 8(k)).
The parties hereto agree that the additional interest or liquidated
damages provided for in this Section 2(e) constitute a reasonable estimate of
the damages that may be incurred by Holders of Registrable Securities by reason
of the failure of a Shelf Registration Statement to be filed or declared
effective or available for effecting resales of Registrable Securities in
accordance with the provisions hereof.
Section 3. Registration Procedures. In connection with the registration
obligations of the Company under Section 2 hereof, the Company shall:
(a) Before filing any Shelf Registration Statement or Prospectus or any
amendments or supplements thereto with the SEC, furnish to the Initial
Purchasers and the Special Counsel of such offering, if any, copies of all such
documents proposed to be filed at least three Business Days prior to the filing
of such Shelf Registration Statement or amendment thereto or Prospectus or
supplement thereto.
(b) Subject to Section 3(h), prepare and file with the SEC such
amendments and post-effective amendments to each Shelf Registration Statement as
may be necessary to keep such Shelf Registration Statement continuously
effective during the Effectiveness Period; cause the related Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and use its reasonable best efforts to comply with the
provisions of the Securities Act applicable to it with respect to the
disposition of all securities covered by such Shelf Registration Statement
during the Effectiveness Period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Shelf Registration
Statement as so amended or such Prospectus as so supplemented.
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(c) As promptly as practicable give notice to the Notice Holders, the
Initial Purchasers and the Special Counsel, (i) when any Prospectus, prospectus
supplement, Shelf Registration Statement or post-effective amendment to a Shelf
Registration Statement has been filed with the SEC and, with respect to a Shelf
Registration Statement or any post-effective amendment, when the same has been
declared effective, (ii) of any request, following the effectiveness of the
initial Shelf Registration Statement under the Securities Act, by the SEC or any
other federal or state governmental authority for amendments or supplements to
any Shelf Registration Statement or related Prospectus or for additional
information, (iii) of the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the effectiveness of any
Shelf Registration Statement or the initiation or threatening of any proceedings
for that purpose, (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (v) of the
occurrence of, but not the nature of or details concerning, a Material Event and
(vi) of the determination by the Company that a post-effective amendment to a
Shelf Registration Statement will be filed with the SEC, which notice may, at
the discretion of the Company (or as required pursuant to Section 3(h)), state
that it constitutes a Deferral Notice, in which event the provisions of Section
3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal of any
order suspending the effectiveness of a Shelf Registration Statement or the
lifting of any suspension of the qualification (or exemption from qualification)
of any of the Registrable Securities for sale in any jurisdiction in which they
have been qualified for sale, in either case as promptly as practicable, and
provide notice as promptly as practicable to each Notice Holder and the Initial
Purchasers of the withdrawal of any such order.
(e) As promptly as practicable furnish to each Notice Holder, the
Special Counsel and the Initial Purchasers, upon request and without charge, at
least one conformed copy of each Shelf Registration Statement and any amendment
thereto, including exhibits and all documents incorporated or deemed to be
incorporated therein by reference.
(f) During the Effectiveness Period, deliver to each Notice Holder, the
Special Counsel, if any, and the Initial Purchasers, in connection with any sale
of Registrable Securities pursuant to a Shelf Registration Statement, without
charge, as many copies of the Prospectus relating to such Registrable Securities
(including each preliminary prospectus) and any amendment or supplement thereto
as such Notice Holder may reasonably request; and the Company hereby consents
(except during such periods that a Deferral Notice is outstanding and has not
been revoked) to the use of such Prospectus or each amendment or supplement
thereto by each Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto in the manner set forth therein.
(g) Prior to any public offering of the Registrable Securities pursuant
to a Shelf Registration Statement, use its reasonable best efforts to register
or qualify or cooperate with the Notice Holders and the Special Counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of such Registrable Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions within the United
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States as any Notice Holder reasonably requests in writing (which request may be
included in the Notice and Questionnaire); prior to any public offering of the
Registrable Securities pursuant to a Shelf Registration Statement, use its
reasonable best efforts to keep each such registration or qualification (or
exemption therefrom) effective during the Effectiveness Period in connection
with such Notice Holder's offer and sale of Registrable Securities pursuant to
such registration or qualification (or exemption therefrom) and do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of such Registrable Securities in the manner set forth in
the Shelf Registration Statement and the related Prospectus; provided that the
Company will not be required to (i) qualify as a foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise be
required to qualify but for this Agreement or (ii) take any action that would
subject it to general service of process in suits or to taxation in any such
jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation of proceedings
with respect to a Shelf Registration Statement under Section 8(d) or 8(e) of the
Securities Act, (B) the occurrence of any event or the existence of any fact (a
"Material Event") as a result of which a Shelf Registration Statement shall
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any Prospectus shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or (C) the occurrence or existence
of any pending corporate development that, in the reasonable discretion of the
Company, makes it appropriate to suspend the availability of a Shelf
Registration Statement and the related Prospectus:
(i) in the case of clause (B) above, as promptly as
practicable prepare and file, if necessary pursuant to applicable law,
a post-effective amendment to such Shelf Registration Statement or a
supplement to the related Prospectus or any document incorporated
therein by reference or file any other required document that would be
incorporated by reference into such Shelf Registration Statement and
Prospectus so that such Shelf Registration Statement does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and such Prospectus does not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, use its
reasonable best efforts to cause it to be declared effective as
promptly as is practicable, and
(ii) give notice to the Notice Holders, and the Special
Counsel, if any, that the availability of a Shelf Registration
Statement is suspended (a "Deferral Notice").
The Company will use its reasonable best efforts to ensure that the use
of the Prospectus may be resumed (x) in the case of clause (A) above, as
promptly as is practicable, (y) in the case of clause (B) above, as soon as, in
the sole judgment of the Company, public disclosure of such Material Event would
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not be prejudicial to or contrary to the interests of the Company or, if
necessary to avoid unreasonable burden or expense, as soon as practicable
thereafter and (z) in the case of clause (C) above, as soon as in the reasonable
discretion of the Company such suspension is no longer appropriate. The Company
shall be entitled to exercise its right under this Section 3(h) to suspend the
availability of a Shelf Registration Statement or any Prospectus, without
incurring or accruing any obligation to pay additional interest or liquidated
damages pursuant to Section 2(e), so long as the aggregate duration of any
periods during which the availability of the Shelf Registration Statement and
any Prospectus is suspended (each, a "Deferral Period") does not exceed 45 days
in any three-month period (or 60 days in any three-month period in the event of
a Material Event pursuant to which the Company has delivered a second notice as
required below) or 90 days in any 12-month period; provided that in the case of
a Material Event relating to an acquisition or a probable acquisition or
financing, recapitalization, business combination or other similar transaction,
the Company may, without incurring any obligation to pay additional interest or
liquidated damages pursuant to Section 2(e), deliver to Notice Holders a second
notice to the effect set forth above, which shall have the effect of extending
the Deferral Period by up to an additional 30 days, or such shorter period of
time as is specified in such second notice.
(i) If requested in writing in connection with a disposition of
Registrable Securities pursuant to a Shelf Registration Statement, make
reasonably available for inspection during normal business hours by a
representative for the Notice Holders of such Registrable Securities, any
broker-dealers, attorneys and accountants retained by such Notice Holders, and
any attorneys or other agents retained by a broker-dealer engaged by such Notice
Holders, all relevant financial and other records and pertinent corporate
documents and properties of the Company and its subsidiaries, and cause the
appropriate officers, directors and employees of the Company and its
subsidiaries to make reasonably available for inspection during normal business
hours on reasonable notice all relevant information reasonably requested by such
representative for the Notice Holders, or any such broker-dealers, attorneys or
accountants in connection with such disposition, in each case as is customary
for similar "due diligence" examinations; provided that such persons shall first
agree in writing with the Company that any nonpublic information shall be used
solely for the purposes of satisfying "due diligence" obligations under the
Securities Act and exercising rights under this Agreement and shall be kept
confidential by such persons, unless (i) disclosure of such information is
required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) in the opinion of Special Counsel,
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing
of any Shelf Registration Statement or the use of any prospectus referred to in
this Agreement), (iii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by any
such person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement, and provided further that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on behalf of
all the Notice Holders and the other parties entitled thereto by the Special
Counsel. Any person legally compelled to disclose any such confidential
information made available for inspection shall provide the Company with prompt
prior written notice of such requirement so that the Company may seek a
protective order or other appropriate remedy.
11
(j) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings statements (which need
not be audited) satisfying the provisions of Section 11(a) of the Securities Act
and Rule 158 thereunder (or any similar rule promulgated under the Securities
Act) for a 12-month period commencing on the first day of the first fiscal
quarter of the Company commencing after the effective date of a Shelf
Registration Statement, which statements shall be made available no later than
45 days after the end of the 12-month period or 90 days if the 12-month period
coincides with the fiscal year of the Company.
(k) Cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable Securities
sold or to be sold pursuant to a Shelf Registration Statement, which
certificates shall not bear any restrictive legends, and cause such Registrable
Securities to be in such denominations as are permitted by the Indenture and
registered in such names as such Notice Holder may request in writing at least
one Business Day prior to any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities covered by
each Shelf Registration Statement not later than the effective date of such
Shelf Registration Statement and provide the Trustee and the transfer agent for
the Common Stock with printed certificates for the Registrable Securities that
are in a form eligible for deposit with The Depository Trust Company.
(m) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
(n) Upon (i) the filing of the initial Shelf Registration Statement and
(ii) the effectiveness of the initial Shelf Registration Statement, announce the
same, in each case by release to Business Wire.
Section 4. Holder's Obligations. (a) Each Holder agrees, by acquisition
of the Registrable Securities, that no Holder shall be entitled to sell any of
such Registrable Securities pursuant to a Shelf Registration Statement or to
receive a Prospectus relating thereto, unless such Holder has furnished the
Company with a Notice and Questionnaire as required pursuant to Section 2(d)
hereof (including the information required to be included in such Notice and
Questionnaire) and the information set forth in the next sentence. Each Notice
Holder agrees promptly to furnish to the Company all information required to be
disclosed in order to make the information previously furnished to the Company
by such Notice Holder not misleading and any other information regarding such
Notice Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. Any sale of any Registrable Securities
by any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or relating to its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to or provided by
such Holder or relating to its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under which
they were made, not misleading. Each Holder further agrees not to sell any
12
Registrable Securities pursuant to a Shelf Registration Statement without
delivering to the purchaser thereof a Prospectus in accordance with the
requirements of all applicable securities laws.
(b) Upon receipt of any Deferral Notice, each Notice Holder agrees not
to sell any Registrable Securities pursuant to any Shelf Registration Statement
until such Notice Holder's receipt of copies of the supplemented or amended
Prospectus provided for in Section 3(h)(i), or until it is advised in writing by
the Company that the Prospectus may be used.
Section 5. Registration Expenses. The Company shall bear all fees and
expenses incurred in connection with the performance by the Company of its
obligations under Sections 2 and 3 of this Agreement whether or not any Shelf
Registration Statement is declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of the Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as Notice Holders of a majority of the Registrable
Securities being sold pursuant to a Shelf Registration Statement may
designate)), (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company), (iii) duplication expenses relating to
copies of any Shelf Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company in
connection with any Shelf Registration Statement, (v) reasonable fees and
disbursements of the Trustee and its counsel and of the registrar and transfer
agent for the Common Stock, (vi) Securities Act liability insurance obtained by
the Company in its sole discretion and (vii) the fees and disbursements of
Special Counsel (other than fees and expenses in connection with any
underwritten offerings); provided, that, with respect to the fees and
disbursements of Special Counsel in clause (vii) hereof, if such Special Counsel
shall be a successor counsel to Shearman & Sterling LLP, then such fees and
disbursements shall not exceed $25,000. In addition, the Company shall pay the
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing by the Company of the Registrable Securities on any securities
exchange on which similar securities of the Company are then listed and the fees
and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay any broker's commission, agency fee or underwriter's
discount or commission in connection with the sale of the Registrable Securities
under a Shelf Registration Statement.
Section 6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Notice
Holder, each person, if any, who controls any Notice Holder within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act,
and each affiliate of any Notice Holder within the meaning of Rule 405 under the
Securities Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement of a
13
material fact contained in any Shelf Registration Statement or any amendment
thereof, any preliminary prospectus or any Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Holder furnished to the Company
in writing by or on behalf of such Holder expressly for use therein; provided
that the foregoing indemnity shall not inure to the benefit of any Holder (or to
the benefit of any person controlling such Holder) from whom the person
asserting such losses, claims or liabilities purchased the Registrable
Securities, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent
or given by or on behalf of such Holder to such person, if required by law so to
have been delivered at or prior to the written confirmation of the sale of the
Registrable Securities to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities, unless such failure is the result of noncompliance by
the Company with Section 2(c) hereof.
(b) Each Holder agrees severally and not jointly to indemnify and hold
harmless the Company and its directors, its officers who sign any Shelf
Registration Statement and each person, if any, who controls the Company (within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act) or any other Holder, to the same extent as the foregoing indemnity
from the Company to such Holder, but only with reference to information relating
to such Holder furnished to the Company in writing by or on behalf of such
Holder expressly for use in such Shelf Registration Statement or Prospectus or
amendment or supplement thereto. In no event shall the liability of any Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities pursuant to the Shelf
Registration Statement giving rise to such indemnification obligation.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to Section 6(a) or 6(b) hereof, such person (the "indemnified
party") shall promptly notify the person against whom such indemnity may be
sought (the "indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably satisfactory
to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party 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 party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
14
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees
and expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by, in the case of parties indemnified pursuant to Section
6(a), the Holders of a majority (with Holders of Securities deemed to be the
Holders, for purposes of determining such majority, of the number of shares of
Underlying Common Stock into which such Securities are or would be convertible
as of the date on which such designation is made) of the Registrable Securities
covered by the Shelf Registration Statement held by Holders that are indemnified
parties pursuant to Section 6(a) and, in the case of parties indemnified
pursuant to Section 6(b), the Company. The indemnifying party 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 party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party 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 party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) To the extent that the indemnification provided for in Section 6(a)
or 6(b) is unavailable to an indemnified party or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand 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 benefits received by the Company shall be deemed to
be equal to the total net proceeds from the initial placement pursuant to the
Purchase Agreement (before deducting expenses) of the Registrable Securities to
which such losses, claims, damages or liabilities relate. The relative benefits
received by any Holder shall be deemed to be equal to the value of receiving
registration rights under this Agreement for the Registrable Securities. The
relative fault of the Holders on the one hand and the Company on the other hand
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
15
to state a material fact relates to information supplied by the Holders or by
the Company, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Holders'
respective obligations to contribute pursuant to this Section 6(d) are several
in proportion to the respective number of Registrable Securities they have sold
pursuant to a Shelf Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
'allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding this Section 6(d), no indemnifying party that is a selling
Holder shall be required to contribute any amount in excess of the amount by
which the total price at which the Registrable Securities sold by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to an
indemnified party at law or in equity, hereunder, under the Purchase Agreement
or otherwise.
(f) The indemnity and contribution provisions contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder, any person controlling any Holder or any affiliate of any Holder or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any
Holder.
Section 7. Information Requirements. The Company covenants that, if at
any time before the end of the Effectiveness Period, the Company is not subject
to the reporting requirements of the Exchange Act, it will cooperate with any
Holder and take such further reasonable action as any Holder may reasonably
request in writing (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act and
customarily taken in connection with sales pursuant to such exemptions. Upon the
written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of the Exchange Act.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities (other than the Common
Stock) under the Exchange Act.
16
Section 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the date
hereof, a party to, nor shall it, on or after the date of this Agreement, enter
into, any agreement with respect to its securities that conflicts with the
rights granted to the Holders in this Agreement. The Company represents and
warrants that the rights granted to the Holders hereunder do not in any way
conflict with the rights granted to the holders of the Company's securities
under any other agreements.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of a
majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Securities deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Securities are or would be convertible as of the
date on which such consent is requested). Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose securities are being
sold pursuant to a Shelf Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by Holders of at
least a majority of the Registrable Securities being sold by such Holders
pursuant to such Shelf 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. Notwithstanding the
foregoing two sentences, this Agreement may be amended by written agreement
signed by the Company and the Initial Purchasers, without the consent of the
Holders of Registrable Securities, to cure any ambiguity or to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provision contained herein, or to make such other provisions in
regard to matters or questions arising under this Agreement that shall not
adversely affect the interests of the Holders of Registrable Securities. Each
Holder of Registrable Securities outstanding at the time of any such amendment,
modification, supplement, waiver or consent or thereafter shall be bound by any
such amendment, modification, supplement, waiver or consent effected pursuant to
this Section 8(b) whether or not any notice, writing or marking indicating such
amendment, modification, supplement, waiver or consent appears on the
Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, by telecopier, by
courier or by first-class mail, return receipt requested, and shall be deemed
given (i) when made, if made by hand delivery, (ii) upon confirmation, if made
by telecopier, (iii) one Business Day after being deposited with such courier,
if made by overnight courier, or (iv) on the date indicated on the notice of
receipt, if made by first-class mail, to the parties as follows:
(i) if to a Holder, at the most current address given by such
Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
17
(ii) if to the Company, to:
Headwaters Incorporated
00000 Xxxxx Xxxxx Xxxxx Xxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopy No.: (000) 000-0000
with a copy to:
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopy No.: (000) 000-0000
(iii) if to the Initial Purchasers, to:
Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Equity Capital Markets
Telecopy No.: (000) 000-0000
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of
a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(e) Successors and Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities, provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Indenture. If any transferee of any Holder
shall acquire Registrable Securities, in any manner, whether by operation of law
or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities,
such person shall be conclusively deemed to have agreed to be bound by and to
perform all of the terms and provisions of this Agreement and such person shall
be entitled to receive the benefits hereof.
18
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
undertakings among the parties with respect to such registration rights. No
party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Section 4, 5 or 6, the confidentiality
obligations pursuant to Section 3(i) hereof, hereof and the obligations to make
payments of and provide for additional interest or liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HEADWATERS INCORPORATED
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
Confirmed and accepted as of
the date first above written, for itself
and as representative of the several Initial Purchasers:
XXXXXX XXXXXXX & CO. INCORPORATED
By: /s/ Xxxxx Xxxxxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxxxxx
Title: Executive Director
20
