TEREX CORPORATION
$250,000,000 13 1/4% Senior Secured Notes due 2002
REGISTRATION RIGHTS AGREEMENT
May 9, 1995
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
XXXXXX, READ & CO. INC.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
TEREX CORPORATION, a Delaware corporation (the "Company"), is issuing
and selling to Xxxxxxxxx & Company, Inc. and Xxxxxx, Read & Co. Inc.
(collectively, the "Purchasers"), upon the terms set forth in a purchase
agreement, dated as of April 27, 1995 (the "Purchase Agreement"), $250,000,000
aggregate principal amount of its 13 1/4% Senior Secured Notes due 2002, Series
A, including the guarantees endorsed thereon (the "Notes"). As an inducement to
the Purchasers to enter into the Purchase Agreement, the Company and each of
the guarantors (the "Guarantors") named in the Purchase Agreement agrees with
the Purchasers, for the benefit of the holders of the Securities (defined
below) (including the Purchasers), as follows:
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:
Advice: See Section 6.
Affiliate: An "Affiliate" of any specified Person means any other
Person, directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control", as used with respect to any Person means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise; provided that beneficial ownership of
10% or more of the voting securities of a Person will be deemed to constitute
control; and the terms "controlling" and "controlled" have meanings correlative
to the foregoing. Notwithstanding the foregoing to the contrary, neither
Xxxxxxxxx & Company, Inc., Xxxxxx, Read & Co. Inc. nor any of their respective
Affiliates will be deemed Affiliates of the Company.
Agreement: This Registration Rights Agreement.
Applicable Period: See Section 2.
Business Days: Any day other than (i) Saturday or Sunday, or (ii) a
day on which banking institutions in the State of New York are authorized or
obligated by law or executive order to be closed.
Closing Date: May 9, 1995.
Effectiveness Date: The date on which the Initial Shelf Registration
is declared effective under the Securities Act.
Effectiveness Period: See Section 3.
Event Date: See Section 4.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Offer: See Section 2.
Exchange Offer Registration Statement: See Section 2.
Exchange Securities: See Section 2.
Filing Date: The 4-month anniversary of the Closing Date.
Holder: Each holder of Registrable Securities.
Indenture: The Indenture, dated the date hereof, between the Company
and United States Trust Company of New York, as trustee, pursuant to which the
Securities are being issued, as amended or supplemented from time to time, in
accordance with the terms thereof.
Initial Shelf Registration: See Section 3.
Liens: Any mortgage, lien, pledge, charge, security interest or
encumbrance of any kind whether or not filed, recorded or otherwise perfected
under applicable law (including any conditional sale or other title retention
agreement, any lease in the nature thereof, any option or other agreement to
sell and any filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any jurisdiction, including
any foreign nation and any political subdivision thereof).
Losses: See Section 8.
NASD: The National Association of Securities Dealers, Inc.
Participating Broker-Dealer: See Section 2.
Person: An individual, trustee, corporation, partnership, joint
stock company, joint venture, trust, unincorporated organization or government
or any agency or political subdivision thereof, union, business association,
firm or other entity.
Private Exchange: See Section 2.
Private Exchange Securities: See Section 2.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities covered by such Registration
Statement, and all other amendments and supplements to the Prospectus,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
Registrable Securities: (i) Notes and Private Exchange Securities
acquired by the holder thereof other than pursuant to an effective registration
statement under the Securities Act or Rule 144 and (ii) Exchange Securities
held by Participating Broker-Dealers.
Registration Statement: Any registration statement of the Company
that covers any of the Securities pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 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: 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.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
Securities: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(i).
Shelf Registration: The Initial Shelf Registration and any
Subsequent Shelf Registration.
Special Counsel: Counsel chosen by the holders of a majority in
aggregate principal amount of Securities.
Subsequent Shelf Registration: See Section 3.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if any, the trustee
under any indenture governing the Exchange Securities or the Private Exchange
Securities.
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
Weekly Liquidated Damages Amount: See Section 4.
2. Exchange Offer
(a) The Company and the Guarantors shall (i) prepare and file with
the SEC promptly after the date hereof, but in no event later than the Filing
Date, a registration statement (the "Exchange Offer Registration Statement") on
an appropriate form under the Securities Act with respect to a proposed offer
(the "Exchange Offer") to the Holders to issue and deliver to such Holders, in
exchange for the Notes, a like principal amount of 13 1/4% Senior Secured Notes
due 2002, Series B, of the Company, including like guarantees endorsed thereon
(the "Exchange Securities"), substantially identical in all respects to the
Notes, except for references to series and restrictive legends, (ii) use their
best efforts to cause the Exchange Offer Registration Statement to become
effective as promptly as practicable after the filing thereof and keep the
Exchange Offer Registration Statement effective until the consummation of the
Exchange Offer pursuant to its terms, and (iii) unless the Exchange Offer would
not be permitted by a policy of the SEC, commence the Exchange Offer and use
their best efforts to issue, on or prior to 30 business days after the date on
which the Exchange Offer Registration Statement is declared effective, Exchange
Securities in exchange for all Notes tendered prior thereto in the Exchange
Offer. To the extent not prohibited by any law or applicable interpretation of
the Staff of the SEC, the Company shall use its best efforts to complete the
Exchange Offer as provided in this Section 2, and shall comply with the
applicable requirements of the Exchange Act. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does not violate
applicable law or any applicable interpretation of the Staff of the SEC.
(b) The Exchange Securities shall be issued under the Indenture or a
trust indenture that is identical to the Indenture (other than such changes to
the Indenture or any such identical indenture as are necessary to comply with
any requirements of the SEC to effect or maintain the qualification thereof
under the TIA).
(c) In connection with the Exchange Offer, the Company and the
Guarantors shall:
(i)
mail to each Holder a copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal that
is an exhibit thereto and related documents;
(ii)
keep the Exchange Offer open for not less than 30 days after the date notice
thereof is mailed to the Holders (or longer if required by applicable law);
(iii)
utilize the services of a depository for the Exchange Offer with an address in
the Borough of Manhattan, The City of New York;
(iv)
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
(v)
otherwise comply in all material respects with all laws applicable to the
Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
the Company and the Guarantors shall:
(i)
accept for exchange all Notes properly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with the terms of the Exchange
Offer Registration Statement and the letter of transmittal that is an exhibit
thereto;
(ii)
deliver to the Trustee for cancellation all Notes so accepted for exchange; and
(iii)
cause the Trustee promptly to authenticate and deliver to each Holder of Notes,
Exchange Securities equal in aggregate principal amount to the Notes of such
Holder so accepted for exchange.
(e) Interest on each Exchange Security and Private Exchange Security
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the Notes, from the date of original issue of the Notes. Each Exchange
Security and Private Exchange Security shall bear interest at the rate set
forth thereon; provided, that interest with respect to the period prior to the
issuance thereof shall accrue at the rate or rates borne by the Notes from time
to time during such period.
(f) The Company and the Guarantors shall include within the
Prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," reasonably acceptable to the Purchasers,
containing a summary statement of the positions taken or policies made by the
Staff of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"). Such "Plan of Distribution"
section shall also allow the use of the Prospectus by all Persons subject to
the prospectus delivery requirements of the Securities Act, including all
Participating Brokers-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Securities. The
Company shall use its best efforts to keep the Exchange Offer Registration
Statement effective and to amend and supplement the Prospectus to be lawfully
delivered by all Persons subject to the prospectus delivery requirement of the
Securities Act for such period of time as such Persons must comply with such
requirements in order to resell the Exchange Securities; provided that such
period shall not exceed 180 days after consummation of the Exchange Offer (or
such longer period if extended pursuant to the last paragraph of Section 6
hereof (the "Applicable Period").
(g) If, prior to consummation of the Exchange Offer, any Purchaser
holds any Securities acquired by it and having the status as an unsold
allotment in the initial distribution, the Company upon the request of such
Purchaser shall, simultaneously with the delivery of the Exchange Securities in
the Exchange Offer, issue (pursuant to the same indenture as the Exchange
Securities) and deliver to such Purchaser, in exchange (the "Private Exchange")
for the Securities held by such Purchaser, a like principal amount of debt
securities of the Company that are identical to the Exchange Securities (the
"Private Exchange Securities"). The Private Exchange Securities shall bear the
same CUSIP number as the Exchange Securities.
(h) The Company may require each holder of Registrable Securities
participating in the Exchange Offer to represent to the Company that at the
time of the consummation of the Exchange Offer (i) any Exchange Securities
received by such holder will be acquired in the ordinary course of its
business, (ii) such holder will have no agreement or understanding with any
Person to participate in the distribution within the meaning of the Securities
Act or resale of the Exchange Securities in violation of the Securities Act and
(iii) such holder will not be in the business of underwriting securities.
(i) If (i) prior to the consummation of the Exchange Offer, either
the Company or a majority of the holders of Registrable Securities determines
in its or their reasonable judgment that (A) the Exchange Securities would not,
upon receipt, be tradeable by such holders without restriction under the
Securities Act and the Exchange Act and without material restrictions under
applicable Blue Sky or state securities laws, (B) the interests of the holders
under this Agreement, taken as a whole, would be materially adversely affected
by the consummation of the Exchange Offer or (C) the SEC is unlikely to permit
the consummation of the Exchange Offer prior to the Effectiveness Date, (ii)
subsequent to the consummation of the Private Exchange but within one year of
the Closing Date, the Purchasers so request, (iii) the Exchange Offer is
commenced and not consummated within 240 days of the Closing Date for any
reason or (iv) the Exchange Offer is commenced and, in the case of any holder
of Registrable Securities participating in the Exchange Offer, such holder does
not receive freely tradeable Exchange Securities upon the consummation thereof
and such holder notifies the Company within six months of such consummation,
then the Company shall promptly deliver to the Holders (or in the case of any
occurrence of the event described in clause (iv) hereof, to any such holder)
and the Trustee notice thereof (the "Shelf Notice") and shall thereafter file
an Initial Shelf Registration pursuant to Section 3. Following the delivery of
a Shelf Notice, neither the Company nor any of the Guarantors shall have any
further obligation under this Section 2 .
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(i)(i),
(ii) or (iii), then this Section 3 shall apply to all Registrable Securities.
Otherwise, upon consummation of the Exchange Offer in accordance with Section
2, the provisions of this section shall apply solely with respect to
Registrable Securities that are (i) Private Exchange Securities or Exchange
Securities held by Participating Broker-Dealers or (ii) held by any holder
thereof participating in the Exchange Offer that did not receive freely
tradeable Exchange Securities as contemplated by Section 2(i)(iv) hereof.
(a) Initial Shelf Registration. The Company and the Guarantors
shall prepare and file with the SEC a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Securities (the "Initial Shelf Registration"). If the Company and
the Guarantors have not yet filed an Exchange Offer, the Company and the
Guarantors shall file with the SEC the Initial Shelf Registration on or prior
to the Filing Date. Otherwise, the Company and the Guarantors shall use their
best efforts to file the Initial Shelf Registration within 20 days of the
delivery of the Shelf Notice or as promptly as possible following the request
of the Purchasers. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable Securities
for resale by such holders in the manner or manners designated by them
(including, without limitation, one or more underwritten offerings). The
Company and the Guarantors shall (i) not permit any securities other than the
Registrable Securities, the Rights and the underlying Common Stock to be
included in the Initial Shelf Registration or any Subsequent Shelf
Registration, and (ii) use their best efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act as promptly as
practicable after the filing thereof and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is 28
months from the Effectiveness Date (subject to extension pursuant to the last
paragraph of Section 6 hereof) (the "Effectiveness Period"), or such shorter
period ending when (i) all Registrable Securities covered by the Initial Shelf
Registration have been sold or (ii) a Subsequent Shelf Registration covering
all of the Registrable Securities has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration ceases to be effective for
any reason at any time during the Effectiveness Period (other than because of
the sale of all of the securities registered thereunder), the Company and the
Guarantors shall use their best efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall, to the
extent possible, within 30 days of such cessation of effectiveness amend the
Shelf Registration in a manner reasonably expected to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional "shelf"
Registration Statement pursuant to Rule 415 covering all of the Registrable
Securities (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Company and the Guarantors shall use their best
efforts to cause the Subsequent Shelf Registration to be declared effective as
soon as practicable after such filing and to keep such Subsequent Shelf
Registration continuously effective for a period equal to the number of days in
the Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration, and any Subsequent Shelf Registration, was
previously effective.
4. Liquidated Damages.
(a) The Company and the Guarantors acknowledge and 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 the Company
and the Guarantors fail to fulfill their obligations hereunder and the Initial
Shelf Registration is filed and declared effective but thereafter ceases to be
effective without being succeeded within 30 days by a Subsequent Shelf
Registration filed and declared effective (an "Event," and the date on which
the 30-day limit is exceeded being referred to herein as an "Event Date").
Accordingly, upon the occurrence of any Event, the Company shall pay,
or cause to be paid (and the Guarantors hereby guarantee the payment of), in
addition to amounts otherwise due under the Indenture and the Registrable
Securities, as liquidated damages, and not as a penalty, to each holder of a
Registrable Security, an additional amount (the "Weekly Liquidated Damages
Amount") equal to (A) for each weekly period beginning on the Event Date for
the first 90-day period immediately following such Event Date, $.05 per week
per $1,000 principal amount of Registrable Securities held by such holder, and
(B) for each weekly period beginning with the first full week after the 90-day
period set forth in the foregoing clause (A), $.10 per week per $1,000
principal amount of Registrable Securities held by such holder; provided that
such liquidated damages will, in each case, cease to accrue (subject to the
occurrence of another Event) on the date on which the applicable Shelf
Registration is no longer subject to an order suspending the effectiveness
thereof or proceedings relating thereto or a new Subsequent Shelf Registration
is declared effective.
(b) The Company shall notify the Trustee within five Business Days
after each Event Date. The Company shall pay the liquidated damages due on the
Registrable Securities by depositing with the Trustee, in trust, for the
benefit of the holders thereof, by 12:00 noon, New York City time, on or before
the applicable semi-annual interest payment date for the Registrable
Securities, immediately available funds in sums sufficient to pay the
liquidated damages then due. The liquidated damages amount due shall be
payable on each interest payment date to the record holder of Registrable
Securities entitled to receive the interest payment to be made on such date as
set forth in the Indenture.
5. Hold-Back Agreements
The Company and the Guarantors agree (i) without the prior written
consent of the holders of a majority of the aggregate principal amount of the
then outstanding Securities, not to effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a
Registration Statement filed pursuant to Section 2 or 3 hereof, or any
securities convertible into or exchangeable or exercisable for such securities,
during the 10 days prior to, and during the 90-day period beginning on, (A) the
effective date of any Registration Statement filed pursuant to Sections 2 and 3
hereof unless the holders of a majority in aggregate principal amount of
Registrable Securities to be included in such Registration Statement consent or
(B) the commencement of an underwritten public distribution of Registrable
Securities, where the managing underwriter so requests; and (ii) to cause each
holder of such securities that are the same as or similar to Registrable
Securities issued at any time after the date of this Agreement (other than
securities purchased in a registered public offering) to agree not to effect
any public sale or distribution of any such securities during such periods,
including a sale pursuant to Rule 144 or Rule 144A.
6. Registration Procedures
In connection with the registration of any Securities pursuant to
Sections 2 or 3 hereof, each of the Company and each Guarantor shall effect
such registrations to permit the sale of such Securities in accordance with the
intended method or methods of disposition thereof, and pursuant thereto the
Company and each Guarantor shall:
(a) Prepare and file with the SEC, as soon as practicable after the
date hereof but in any event prior to the Filing Date, a Registration Statement
or Registration Statements as prescribed by Section 2 or 3, and use its best
efforts to cause each such Registration Statement to become effective and
remain effective as provided herein; provided, however, that, if (i) such
filing is pursuant to Section 3 or (ii) a Prospectus contained in an Exchange
Offer Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Company and the Guarantors shall, if requested, furnish to and afford the
holders of the Registrable Securities covered by such Registration Statement,
their Special Counsel, each Participating Broker-Dealer, the managing
underwriters, if any, and their counsel a reasonable opportunity to review and
make available for inspection by such Persons copies of all such documents
(including copies of any documents to be incorporated by reference therein and
all exhibits thereto) proposed to be filed, such financial and other
information and books and records of the Company and the Guarantors, and cause
the officers, directors and employees of the Company and the Guarantors,
Company counsel and independent certified public accountants of the Company, to
respond to such inquiries (such actions are hereinafter collectively referred
to as the "Review"), as shall be reasonably necessary, in the opinion of
respective counsel to such holders, Participating Broker-Dealer and
underwriters, to conduct a reasonable investigation within the meaning of the
Securities Act. The Company may require each holder of Registrable Securities
to agree (i) to keep confidential any non-public information relating to the
Company received by such holders and not disclose such information (other than
to an Affiliate or prospective purchaser who agrees to respect the
confidentiality provisions of this Section 6(a)) and (ii) to abstain from
trading in any securities of the Company on the basis of material, non-public
information, in each case until such information has been made generally
available to the public and, in the case of clause (i) above, unless the
release of such information is required by law or necessary to respond to
inquiries of regulatory authorities (including the National Association of
Insurance Commissioners, or similar organizations or their successors).
Neither the Company nor any Guarantor shall file any Registration Statement or
Prospectus or any amendments or supplements thereto in respect of which the
Holders must be afforded an opportunity to review prior to the filing of such
document, if the holders of a majority in aggregate principal amount of the
Registrable Securities covered by such Registration Statement, their Special
Counsel, any Participating Broker-Dealer or the managing underwriters, if any,
or their counsel shall reasonably object to the Company if such objection
states that the person or persons making such objection believe that such
Registration Statement, Prospectus or amendment does not comply in any material
respect with any applicable law.
(b) Provide an indenture trustee for the Registrable Securities or
the Exchange Securities, as the case may be, and cause the Indenture to be
qualified under the TIA not later than the effective date of the first
Registration Statement relating to the Securities; and in connection therewith,
cooperate with the trustee under any such indenture and the holders of the
Securities, to effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use its best efforts to cause such trustee to execute, all
documents as may be required to effect such changes, and all other forms and
documents required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner.
(c) Use its best efforts to prepare and file with the SEC such
amendments and post-effective amendments to the Registration Statement as may
be necessary to keep such Registration Statement continuously effective for the
time periods required hereby; 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 comply in all material respects with the provisions of the
Securities Act, the Exchange Act and the rules and regulations of the SEC
promulgated thereunder applicable thereto with respect to the disposition of
all securities covered by such Registration Statement, as so amended, or in
such Prospectus, as so supplemented, and with respect to the subsequent resale
of any Securities being sold by a Participating Broker-Dealer covered by any
such Prospectus.
(d) Furnish to such selling holders and Participating Broker-Dealers
who so request (i) upon the Company's receipt, a copy of the order of the SEC
declaring such Registration Statement and any post-effective amendment thereto
effective and (ii) such reasonable number of copies of such Registration
Statement and of each amendment and supplement thereto (in each case including
any documents incorporated therein by reference and all exhibits), (iii) such
reasonable number of copies of the Prospectus included in such Registration
Statement (including each preliminary Prospectus), and such reasonable number
of copies of the final Prospectus as filed by the Company pursuant to Rule
424(b) under the Securities Act, in conformity with the requirements of the
Securities Act, and (iv) such other documents (including any amendments
required to be filed pursuant to clause (c) of this Section), as any such
Person may reasonably request. The Company and the Guarantors hereby consent
to the use of the Prospectus by each of the selling holders of Registrable
Securities 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 Securities covered by, or the sale by
Participating Broker-Dealers of the Exchange Securities pursuant to, such
Prospectus and any amendment thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, notify the selling holders of Registrable Securities,
their Special Counsel, each Participating Broker-Dealer and the managing
underwriters, if any, promptly (but in any event within five Business Days with
respect to clause (e)(i), below, and two Business Days with respect to clauses
(e)(ii)-(e)(vi), below), and confirm such notice in writing, (i) when a
Prospectus has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (ii) of the
issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
Prospectus or the initiation of any proceedings for that purpose, (iii) if, at
any time when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Securities, the representations and
warranties of the Company or of any Guarantor contained in any agreement
(including any underwriting agreement) contemplated by Section 6(n) below cease
to be true and correct in any material respect, (iv) of the receipt by the
Company or any Guarantor of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration Statement
or any of the Registrable Securities or the Exchange Securities to be sold by
any Participating Broker-Dealer for offer or sale in any jurisdiction, or the
contemplation, initiation or threatening of any proceeding for such purpose,
(v) of the happening of any event 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 such Registration Statement,
Prospectus or documents so that 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 in
which they were made, not misleading, and (vi) of the Company's reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(f) Use its best efforts to register or qualify, and, if applicable,
to cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, Securities to be included in a Registration Statement 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 underwriters reasonably request in writing; and, if Securities are
offered other than through an Underwritten Offering, the Company agrees to
cause its counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 6(f) at the
expense of the Company; 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 necessary
or advisable to enable the disposition in such jurisdictions of the Securities
covered by the applicable Registration Statement, provided, however, that none
of the Company nor the Guarantors shall be required to (i) qualify generally to
do business in any jurisdiction where it is not then so qualified, (ii) to
take action that would subject it to general service of process in any
jurisdiction where it is not so subject or (iii) subject it to taxation in
excess of a nominal dollar amount in any such jurisdiction.
(g) Use its best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Securities for
sale in any jurisdiction, and, if any such order is issued, to use its best
efforts to obtain the withdrawal of any such order at the earliest possible
time.
(h) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, and if requested by the managing underwriters, if any,
or the holders of a majority in aggregate principal amount of the Registrable
Securities, (i) promptly incorporate in a Prospectus or post-effective
amendment such information as the managing underwriters, if any, or such
holders reasonably request to be included therein required to comply with any
applicable law and (ii) make all required filings of such Prospectus or such
post-effective amendment as soon as practicable after the Company has received
notification of such matters required by applicable law to be incorporated in
such Prospectus or post-effective amendment.
(i) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, cooperate with the selling holders of Registrable
Securities and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities 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 Securities to be in such denominations and registered in such
names as the managing underwriters, if any, or holders may reasonably request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 6(e)(v) or 6(e)(vi) above, as promptly as practicable prepare 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 Securities
being sold thereunder or to the purchasers of the Exchange Securities to whom
such Prospectus will be delivered by a Participating Broker-Dealer, such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
(k) Use its best efforts to cause the Securities covered by a
Registration Statement to be rated with the appropriate rating agencies, if
appropriate, if so requested by the holders of a majority in aggregate
principal amount of securities covered by such Registration Statement or the
managing underwriters, if any.
(l) Prior to the effective date of the first Registration Statement
relating to the Securities, (i) provide the applicable trustee with printed
certificates for the Securities in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for each of the
Securities.
(m) Use its best efforts to cause all Securities covered by such
Registration Statement to be listed on each securities exchange, if any, on
which similar debt securities issued by the Company are then listed.
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such other
reasonable actions in connection therewith (including those reasonably
requested by the managing underwriters, if any, or the holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate the
registration or the disposition of such Registrable Securities, and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, (i) make such
representations and warranties to the holders of such Registrable Securities
and the underwriters, if any, with respect to the business of the Company and
its subsidiaries, and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in Underwritten Offerings, and confirm the same if and when
reasonably requested; (ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and the
holders of a majority in principal amount of the Registrable Securities being
sold), addressed to each selling holder of Registrable Securities and each of
the underwriters, if any, covering the matters customarily covered in opinions
requested in Underwritten Offerings; (iii) obtain "cold comfort" letters and
updates thereof (which letters and updates (in form, scope and substance) shall
be reasonably satisfactory to the managing underwriters) from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters and each selling holder of
Registrable Securities, 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 such other matters as reasonably requested by
underwriters; and (iv) deliver such documents and certificates as may be
reasonably requested by the holders of a majority in principal amount of the
Registrable Securities being sold and the managing underwriters, if any, to
evidence the continued validity of the representations and warranties of the
Company and its subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement or other
similar agreement entered into by the Company. The above shall be done at each
closing under such underwriting agreement or similar agreement, or as and to
the extent required thereunder.
(o) Comply in all material respects with all applicable rules and
regulations of the SEC and make generally available to its security holders
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 on the first day of the fiscal quarter following each
fiscal quarter in which Registrable Securities 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.
(p) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Company (in form, scope and substance
reasonably satisfactory to the Purchasers), addressed to all holders of
Registrable Securities participating in the Exchange Offer or Private Exchange,
as the case may be, to the effect that (i) the Company and the Guarantors have
duly authorized, executed and delivered the Exchange Securities and the
Indenture, (ii) the Exchange Securities or the Private Exchange Securities, as
the case may be, and Indenture constitute legal, valid and binding obligations
of the Company and the Guarantors, enforceable against the Company and the
Guarantors in accordance with their respective terms, except as such
enforcement may be subject to (x) applicable bankruptcy, insolvency,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and (y) general principles of equity (regardless of whether
such enforcement is sought in a proceeding in equity or at law), and (iii) all
obligations of the Company and the Guarantors under the Exchange Securities or
the Private Exchange Securities, as the case may be, and the Indenture are
secured by Liens on the assets securing the obligations of the Company under
the Notes.
(q) If an Exchange Offer or Private Exchange is to be consummated,
upon delivery of the Registrable Securities by such holders to the Company (or
to such other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, the Company
shall mark, or caused to be marked, on such Registrable Securities that such
Registrable Securities are being cancelled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(s) Use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities as the Company may, from time to time, reasonably request in writing
and to provide comments with respect to the Registration Statement to be used
in connection with any Shelf Registration. The Company may exclude from such
registration the Registrable Securities of any seller or Exchange Securities of
any Participating Broker-Dealer who unreasonably fails to furnish such
information or provide such comments within a reasonable time after receiving
such request.
Each holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities of any Participating Broker-Dealer that, upon receipt of written
notice from the Company of the happening of any event of the kind described in
Section 6(e)(ii), 6(e)(iv), 6(e)(v) or 6(e)(vi), such holder will forthwith
discontinue disposition (in the jurisdictions specified in a notice of a
6(e)(iv) event, and elsewhere in a notice of a 6(e)(ii), 6(e)(v) or 6(e)(vi)
event) of such Securities covered by such Registration Statement or Prospectus
until such holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 6(j), or until it is advised in writing (the
"Advice") by the Company that offers or sales in a particular jurisdiction may
be resumed or that the use of the applicable Prospectus may be resumed, as the
case may be, and has received copies of any amendments or supplements thereto.
In the event the Company shall give 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 such Securities covered by such
Registration Statement shall have received (x) the copies of the supplemented
or amended Prospectus contemplated by Section 6(j) or (y) the Advice.
7. Registration Expenses
(a) All reasonable fees and expenses incident to the performance of
or compliance with this Agreement by the Company and the Guarantors shall be
borne by the Company and the Guarantors whether or not the Exchange Offer or a
Shelf Registration is filed or becomes effective, including, without
limitation:
(i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
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 Securities or
Exchange Securities and determination of the eligibility of the Registrable
Securities or Exchange Securities for investment under the laws of such
jurisdictions (x) where the holders of Registrable Securities are located, in
the case of the Exchange Securities, or (y) as provided in Section 6(f), in the
case of Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period);
(ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities or Exchange
Securities 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 underwriters, if any, or, in respect of Registrable Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during the
Applicable Period, by the holders of a majority in aggregate principal amount
of the Registrable Securities included in any Registration Statement or of such
Exchange Securities, as the case may be);
(iii) messenger, telephone, duplication, word processing
and delivery expenses incurred by the Company in the performance of its
obligations hereunder;
(iv) fees and disbursements of counsel for the Company;
(v) fees and disbursements of all independent certified
public accountants for the Company referred to in Section 6(m)(iii) (including,
without limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Schedule E to the By-laws of the NASD, but only where
the need for such a "qualified independent underwriter" arises due to a
relationship with the Company;
(vii) Securities Act liability insurance, if the Company
so desires such insurance;
(viii) fees and expenses of all other Persons retained by
the Company; internal expenses of the Company (including, without limitation,
all salaries and expenses of officers and employees of the Company performing
legal or accounting duties); and the expense of any annual audit; and
(ix) rating agency fees and the fees and expenses incurred
in connection with the listing of the Securities to be registered on any
securities exchange.
(b) The Company shall reimburse the holders of the Registrable
Securities for the reasonable fees and disbursements of not more than one
counsel (in addition to appropriate local counsel approved by the Company in
its reasonable discretion) chosen by the holders of a majority in aggregate
principal amount of the Registrable Securities to be included in any
Registration Statement and other reasonable and necessary out-of-pocket
expenses of the holders of Registrable Securities incurred in connection with
the registration of the Registrable Securities.
8. Indemnification
(a) Indemnification by the Company. The Company and each of the
Guarantors, jointly and severally, shall, without limitation as to time,
indemnify and hold harmless each holder of Registrable Securities and each
Participating Broker-Dealer selling Exchange Securities during the Applicable
Period, the officers, directors and agents and employees of each of them, each
Person who controls each such holder (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) and the officers,
directors, agents and employees of each such controlling person, to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees) and expenses (including, without
limitation, reasonable costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the foregoing)
(collectively, "Losses"), as incurred, directly or indirectly caused by,
related to, based upon, arising out of or in connection with any untrue or
alleged untrue statement of a material fact contained in any Registration
Statement, Prospectus or form of prospectus, or in any amendment or supplements
thereto, or in any preliminary prospectus, or any omission or alleged omission
to state therein a material fact required to be stated therein, in the light of
the circumstances under which they were made, or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such Losses are based solely upon
information relating to such holder or Participating Broker-Dealer and
furnished in writing to the Company (or reviewed and approved in writing) by
such holder or Participating Broker-Dealer expressly for use therein; provided,
however, that neither the Company nor any of the Guarantors shall be liable to
any Indemnified Party to the extent that any such losses arise solely out of an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if (i) such Indemnified Party or related
holder of a Registrable Security failed to send or deliver a copy of the
Prospectus with or prior to the delivery of written confirmation of the sale by
such Indemnified Party or the related holder of a Registrable Security to the
person asserting the claim from which such Losses arise, (ii) the Prospectus
would have corrected such untrue statement or alleged untrue statement or
omission or alleged omission, and (iii) the Company and the Guarantors have
complied with their obligations under Section 6(e) hereof. The Company and
each of the Guarantors shall also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, their officers, directors, agents and employees and each
Person who controls such Persons (within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) to the same extent as
provided above with respect to the indemnification of the holders of
Registrable Securities or the Participating Broker-Dealer except insofar as
such Losses are based solely upon such Underwriter's actions, or gross
negligence or willful misconduct.
(b) Indemnification by Holder of Registrable Securities. In
connection with any Registration Statement in which a holder of Registrable
Securities is participating, such holder of Registrable Securities shall
furnish to the Company in writing such information as the Company reasonably
requests for use in connection with any Registration Statement or Prospectus
and shall, without limitation as to time, indemnify and hold harmless the
Company, its directors, officers, agents and employees, each Person, if any,
who controls the Company (within the meaning of Section 15 of the Securities
Act and Section 20(a) of the Exchange Act), and the directors, officers, agents
or employees of such controlling persons, to the fullest extent lawful, from
and against all Losses arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
Prospectus or form of prospectus or in any amendment or supplements thereto or
in any preliminary prospectus, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading to the extent, but only to the extent, that such untrue
statement or omission is contained in any information so furnished in writing
by such holder to the Company expressly for use therein. In no event shall the
liability of any selling holder of Registrable Securities hereunder be greater
in amount than the dollar amount of the proceeds (net of payment of all
expenses) received by such holder upon the sale of the Registrable Securities
giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall
be brought or asserted against any Person entitled to indemnity hereunder (an
"indemnified party"), such indemnified party shall promptly notify the party or
parties from which such indemnity is sought (the "indemnifying parties") in
writing; provided, however, that the failure to so notify the indemnifying
parties shall not relieve the indemnifying parties from any obligation or
liability except to the extent (but only to the extent) that it shall be
finally determined by a court of competent jurisdiction (which determination is
not subject to appeal) that the indemnifying parties have been prejudiced
materially by such failure.
The indemnifying party shall have the right, exercisable by giving
written notice to an indemnified party, within 20 business days after receipt
of written notice from such indemnified party of such Proceeding, to assume, at
its expense, the defense of any such Proceeding, provided, however, that an
indemnified party shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be at the expense of such indemnified party or parties
unless: (1) the indemnifying party has agreed to pay such fees and expenses; or
(2) the indemnifying party shall have failed promptly to assume the defense of
such Proceeding or shall have failed to employ counsel reasonably satisfactory
to such indemnified party; or (3) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and the
indemnifying party or any of its affiliates or controlling persons, and such
indemnified party shall have been advised by counsel that there may be one or
more material defenses available to such indemnified party that are in addition
to, or in conflict with, those material defenses available to the indemnifying
party or such affiliate or controlling person (in which case, if such
indemnified party notifies the indemnifying parties in writing that it elects
to employ separate counsel at the expense of the indemnifying parties, the
indemnifying parties shall not have the right to assume the defense thereof and
the reasonable fees and expenses of such counsel shall be at the expense of the
indemnifying party; it being understood, however, that, the indemnifying party
shall not, in connection with any one such Proceeding or separate but
substantially similar or related Proceedings in the same jurisdiction, arising
out of the same general allegations or circumstances, be liable for the fees
and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for such indemnified party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party jointly and severally agrees, subject to
the exceptions and limitations set forth above, to indemnify and hold harmless
each indemnified party from and against any and all Losses by reason of such
settlement or judgment. The indemnifying party shall not consent to the entry
of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release, in form and substance reasonably satisfactory
to the indemnified party, from all liability in respect of such Proceeding for
which such indemnified party would be entitled to indemnification hereunder
(whether or not any indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party or is insufficient to hold
such indemnified party harmless for any Losses in respect of which this Section
8 would otherwise apply by its terms (other than by reason of exceptions
provided in this Section 8), then each applicable indemnifying party, in lieu
of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the amount paid or payable by such indemnified
party as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party, on the one hand, and indemnified party, on the other hand, shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent any such statement or
omission. The amount paid or payable by an indemnified party as a result of
any Losses shall be deemed to include any legal or other fees or expenses
incurred by such party in connection with any Proceeding, to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in Section 8(a) or 8(b) was available to such
party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), an indemnifying
party that is a selling holder of Registrable Securities shall not be required
to contribute, in the aggregate, any amount in excess of such holder's Maximum
Contribution Amount. A selling holder's "Maximum Contribution Amount" shall
equal the excess of (i) the aggregate proceeds received by such holder pursuant
to the sale of such Registrable Securities over (ii) the aggregate amount of
damages that such holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability that the indemnifying parties may have to the
indemnified parties, provided that any excess payment made by the Company or
the Guarantors shall be refunded to the Company or the Guarantors by the
Indemnified Party securing such excess payment.
9. Rule 144 and Rule 144A
Each of the Company and each Guarantor covenants that it shall (a)
file the reports required to be filed by it (if so required) under the
Securities Act and the Exchange Act and the rules and regulations adopted by
the SEC thereunder in a timely manner and, if at any time any such Person is
not required to file such reports, it will, upon the request of any holder of
Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A and (b) take such
further action as any holder of Registrable Securities 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 pursuant
to the exemptions provided by Rule 144 and Rule 144A. Upon the request of any
holder of Registrable Securities, the Company and the Guarantors shall deliver
to such holder a written statement as to whether they have complied with such
information and requirements.
10. Underwritten Registrations
If any of the Registrable Securities 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 Securities included in such offering with the consent of the
Company, which consent will not be unreasonably withheld.
No holder of Registrable Securities may participate in any
underwritten registration hereunder unless such holder (a) agrees to sell such
holder's Registrable Securities 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, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
11. Miscellaneous
(a) Remedies. In the event of a breach by the Company or any of the
Guarantors of any of its respective obligations under this Agreement, each
holder of Registrable Securities, in addition to being entitled to exercise all
rights provided herein, in the Indenture or, in the case of the Purchasers, in
the Purchase Agreement, or granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Agreement. The
Company and each of the Guarantors agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of any
of the provisions of this Agreement and hereby further agrees that, in the
event of any action for specific performance in respect of such breach, it
shall waive the defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company has not entered into,
as of the date hereof, and shall not enter into, after the date of this
Agreement, any agreement with respect to any of its securities that is
inconsistent with the rights granted to the holders of Registrable Securities
in this Agreement or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of
holders of at least a majority of the then outstanding aggregate principal
amount of Registrable Securities; provided, however, that Sections 6(a) and 8
shall not be amended, modified or supplemented, and waivers or consents to
departures from this proviso may not be given, unless the Company has obtained
the written consent of each holder of the then outstanding Registrable
Securities. 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 Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other holders of Registrable Securities may be given by
holders of at least a majority in aggregate principal amount of the Registrable
Securities being sold by such holders pursuant to such Registration Statement,
provided that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(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,
certified first-class mail, return receipt requested, next-day air courier or
facsimile:
(i) if to a holder of Registrable Securities, at the most
current address given by such holder to the Company in accordance with the
provisions of this Section 11(d), which address initially is, with respect to
each holder, the address of such holder maintained by the Registrar under the
Indenture, with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, telecopy number (000) 000-0000,
Attention: Xxxxxxx X. Xxxxxxxx, Esq.; and
(ii) if to the Company or any of the Guarantors, initially
c/o Terex Corporation, 000 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxxxxx, Esq., telecopy number (000) 000-0000, and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 11(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days
after being deposited in the mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(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, including, without limitation and without the need for an express
assignment, subsequent holders of Registrable Securities.
(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, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE COMPANY AND EACH GUARANTOR
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY
AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY
AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. EACH OF THE COMPANY AND EACH GUARANTOR IRREVOCABLY CONSENTS, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO THE COMPANY AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PURCHASER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY OR ANY GUARANTOR IN ANY
OTHER JURISDICTION.
(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) 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. 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 in
respect of securities sold pursuant to the Purchase Agreement. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
(k) Attorneys' Fees. 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 prevailing party, as determined by the courts, shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(l) Securities Held by the Company or its Affiliates. 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 Holders or subsequent holders of Registrable Securities if such
Holders or 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.
REGISTRATION RIGHTS AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
TEREX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
CMH ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
XXXXX MATERIAL HANDLING COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
CMH ACQUISITION INTERNATIONAL
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
KOEHRING CRANES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
TEREX CRANES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
LEGRIS INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
PPM CRANES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Secretary
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:
XXXXXX, READ & CO. INC.
By: /s/ Xxxxxx Xxxxxx
