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EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated December 23, 1996
between
MAXXAM GROUP HOLDINGS INC.
MAXXAM INC.
and
BEAR, XXXXXXX & CO. INC.
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 23, 1996 between MAXXAM Group Holdings Inc., a
Delaware corporation (the "Company"), and MAXXAM Inc., a Delaware corporation
(the "Guarantor"), on the one hand, and Bear, Xxxxxxx & Co. Inc. and Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation (the "Purchasers"), on the other.
This Agreement is made pursuant to the Purchase Agreement dated
December 17, 1996 among the Company, the Guarantor and the Purchasers (the
"Purchase Agreement"), which provides for, among other things, the sale by the
Company to the Purchasers of an aggregate of $130,000,000 principal amount of
the Company's 12% Senior Secured Notes due 2003 (the "Securities"). In order
to induce the Purchasers to enter into the Purchase Agreement, the Company and
the Guarantor have agreed to provide to the Purchasers and certain of their
direct and indirect transferees the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
closing of the transactions contemplated by the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
defined terms shall have the following meanings:
"Additional Interest" shall have the meaning set forth in Section 2(e)
hereof.
"Advice" shall have the meaning set forth in the last paragraph of
Section 3 hereof.
"Applicable Period" shall have the meaning set forth in Section 2(b)
hereof.
"Business Day" shall mean a day that is not a Saturday, a Sunday, or a
day on which banking institutions in New York, New York are required to be
closed.
"Company" shall have the meaning set forth in the preamble to this
Agreement and also includes the Company's successors and permitted assigns.
"Depository" shall mean The Depository Trust Company, or any other
depository appointed by the Company; provided, however, that such depository
must have an address in the Borough of Manhattan, in The City of New York.
"Effectiveness Period" shall have the meaning set forth in Section
2(b) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations of the SEC promulgated
thereunder.
"Exchange Notes" shall mean the 12% Senior Secured Notes due 2003,
Series B, issued by the Company under the Indenture containing terms
substantially identical to the Securities (except that (i)
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interest thereon shall accrue from the last date to which interest was paid on
the Securities or, if no such interest has been paid, from the Issue Date, (ii)
the provisions for Additional Interest thereon shall be eliminated (except as
contemplated by Section 2(e)(v) hereof with respect to Exchange Notes held by
Participating Broker-Dealers) and (iii) the transfer restrictions thereon shall
be eliminated) to be offered to Holders in exchange for Securities pursuant to
the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company of
Exchange Notes for Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean any registration
statement of the Company which covers any of the Exchange Notes or Registrable
Securities pursuant to the provisions of this Agreement, and all amendments and
supplements to any such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference, or deemed to be
incorporated by reference, therein.
"Exchange Period" shall have the meaning set forth in Section 2(a)(B)
hereof.
"Guarantor" shall have the meaning set forth in the Indenture.
"Holder" shall mean the Purchasers, for so long as they own any
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture.
"Indenture" shall mean the Indenture relating to the Securities dated
as of December 23, 1996 among the Company, as issuer, the Guarantor and First
Bank National Association, as trustee, as the same may be amended or
supplemented from time to time in accordance with the terms thereof.
"Inspectors" shall have the meaning set forth in Section 3(n) hereof.
"Issue Date" shall mean December 23, 1996.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities.
"Participating Broker-Dealer" shall have the meaning set forth in
Section 3(s) hereof.
"Person" shall mean an individual, trustee, partnership, corporation,
trust or unincorporated organization, or a government or agency or political
subdivision thereof, or other legal entity.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and
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supplements to a prospectus, including post-effective amendments, and in each
case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Purchasers" shall have the meaning set forth in the preamble to this
Agreement.
"Records" shall have the meaning set forth in Section 3(n) hereof.
"Registrable Securities" shall mean the Securities; provided, however,
that Securities shall cease to be Registrable Securities when (i) a
Registration Statement with respect to such Securities for the resale thereof,
shall have been declared effective under the Securities Act and such Securities
shall have been disposed of pursuant to such Registration Statement, (ii) such
Securities shall have been sold to the public in compliance with Rule 144 (or
any similar provision then in force) under the Securities Act, (iii) such
Securities shall have ceased to be outstanding or (iv) with respect to the
Securities, such Securities have been exchanged for Exchange Notes upon
consummation of the Exchange Offer and are thereafter freely tradeable by the
holder thereof not an affiliate of the Company or the Guarantor.
"Registration Default" shall have the meaning set forth in Section
2(e) hereof.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Company and the Guarantor with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" (and its counsel) that is required to be retained by
any Holder in accordance with the rules and regulations of the NASD, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with blue sky qualification of any of
the Exchange Notes or Registrable Securities) and compliance with the rules of
the NASD, (iii) all expenses of any Persons retained with the consent of the
Company in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing, printing and
distributing any underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this Agreement,
(iv) all rating agency fees, (v) the fees and disbursements of counsel for the
Company and the Guarantor and of the independent certified public accountants
of the Company and the Guarantor, including the expenses of any "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
fees and expenses of the Trustee, and any exchange agent or custodian, (vii)
all fees and expenses incurred in connection with the listing, if any, of any
of the Registrable Securities or Exchange Notes on any securities exchange or
exchanges, and (viii) any fees and disbursements of any underwriter customarily
required to be paid by issuers or sellers of securities and the reasonable fees
and expenses of any special experts, in each case, retained by the Company or
any Guarantor in connection with any Registration Statement, but excluding fees
of counsel to the underwriters and underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.
"Registration Statement" shall mean each of the Exchange Offer
Registration Statement and the Shelf Registration Statement, as applicable.
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"SEC" shall mean the Securities and Exchange Commission.
"Securities" shall have the meaning set forth in the preamble to this
Agreement.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time and the rules and regulations of the SEC promulgated
thereunder.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in Section
2(b) hereof.
"Shelf Registration Event Date" shall have the meaning set forth in
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) hereof
which covers Registrable Securities in respect of which a Shelf Registration
Statement is required to be filed pursuant to this Agreement on an appropriate
form pursuant to Rule 415 under the Securities Act, or any similar rule that
may be adopted by the SEC, and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference or deemed to be incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
2. Registration Under the Securities Act.
a. Exchange Offer. To the extent not prohibited by any law
or applicable interpretations of the staff of the SEC, the Company and
the Guarantor shall, for the benefit of the Holders, at the Company's
expense, (i) cause to be filed with the SEC within 60 days after the
Issue Date an Exchange Offer Registration Statement on an appropriate
form under the Securities Act covering the offer by the Company and
the Guarantor to the Holders to exchange any and all of the
Registrable Securities for a like principal amount of Exchange Notes
(the "Exchange Offer"), (ii) use their reasonable best efforts to have
such Exchange Offer Registration Statement declared effective under
the Securities Act by the SEC within 150 days after the Issue Date,
(iii) use their reasonable best efforts to have such Exchange Offer
Registration Statement remain effective until the closing of the
Exchange Offer and (iv) use their reasonable best efforts to cause the
Exchange Offer to be consummated within 180 days after the Issue Date.
The Exchange Notes will be issued under the Indenture. Upon the
effectiveness of the Exchange Offer Registration Statement, the
Company and the Guarantor shall as soon as practicable commence the
Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable
Securities for Exchange Notes (assuming that such Holder is not an
affiliate of the Company or any Guarantor within the meaning of Rule
405 under the Securities Act and is not a broker-dealer tendering
Registrable Securities acquired directly from the Company or any
Guarantor or any affiliate of the Company or any Guarantor for its own
account, and has no arrangements or understandings with any Person to
participate in the Exchange Offer for the
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purpose of distributing (within the meaning of the Securities Act) the
Exchange Notes) to transfer such Exchange Notes from and after their
receipt, subject to the prospectus delivery requirements of
Participating Broker-Dealers as contemplated by Section 3(s) hereof,
without any limitations or restrictions under the Securities Act or
under state securities or blue sky laws.
In connection with the Exchange Offer, the Company and the
Guarantor shall:
(A) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(B) keep the Exchange Offer open for acceptance for a
period of not less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by applicable law) (such
period referred to herein as the "Exchange Period");
(C) utilize the services of a Depository for the
Exchange Offer;
(D) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York time, on the last
Business Day of the Exchange Period, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Securities delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Securities exchanged;
(E) notify each Holder that any Security not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except as otherwise provided
herein); and
(F) otherwise comply in all material respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange Offer
the Company shall (i) accept for exchange all Securities or portions
thereof tendered and not validly withdrawn pursuant to the Exchange
Offer and (ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Securities or portions thereof so accepted for
exchange by the Company, and issue, and cause the Trustee under the
Indenture to promptly authenticate and deliver to each Holder, a new
Exchange Note equal in principal amount to the principal amount of the
Securities surrendered by such Holder.
To the extent not prohibited by any law or applicable
interpretations of the staff of the SEC, the Company and the Guarantor
shall use their reasonable best efforts to complete the Exchange Offer
as provided above, and shall comply with the applicable requirements
of the Securities Act, the Exchange Act and other applicable laws in
connection with the Exchange Offer. The Exchange Offer shall not be
subject to any conditions, other than that the Exchange Offer does not
violate any law or applicable interpretations of the staff of the SEC.
Each Holder who wishes to exchange such Registrable Securities for
Exchange Notes in the Exchange Offer will be required to make certain
customary representations in connection therewith, including
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representations that (i) it is not an affiliate of the Company or the
Guarantor, (ii) it is not a broker-dealer tendering Securities
acquired directly from the Company or the Guarantor or an affiliate of
the Company or the Guarantor, (iii) any Exchange Notes to be received
by it will be acquired in the ordinary course of its business, (iv) it
has no arrangement or understanding with any person to participate in
the distribution (within the meaning of the Securities Act) of the
Exchange Notes in violation of the Securities Act and (v) it is not
acting on behalf of any person who could not truthfully make the
foregoing representations.
Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to
apply, mutatis mutandis, solely with respect to Registrable Securities
as to which Section 2(b)(iii) or Section 2(b)(iv) hereof is applicable
and to Exchange Notes held by Participating Broker-Dealers, and the
Company shall have no further obligation to register Registrable
Securities (other than Securities as to which Section 2(b)(iii) or
Section 2(b)(iv) hereof is applicable) pursuant to Section 2(b)
hereof.
b. Shelf Registration. In the event that (i) the
Company reasonably determines, after conferring with counsel (which
may be in-house counsel), that the Exchange Offer Registration
provided in Section 2(a) hereof is not available or may not be
consummated as soon as practicable after the last day of the Exchange
Period because it would violate any law or applicable interpretations
of the staff of the SEC, (ii) the Exchange Offer is not for any reason
consummated or capable of being consummated within 210 days after the
Issue Date, (iii) any Holder notifies the Company in writing within 15
days after receipt of the prospectus forming part of the Exchange
Offer Registration Statement required to be mailed to each Holder as
set forth above that (A) in the opinion of nationally-recognized
counsel for such Holder (or counsel acting for or by reference to all
Holders), due to a change in law or SEC staff interpretation which
change occurs subsequent to the date hereof, such Holder is not
entitled to participate in the Exchange Offer or (B) in the opinion of
nationally-recognized counsel for such Holder (or counsel acting for
or by reference to all Holders), due to a change in law or SEC staff
interpretation which change occurs subsequent to the date hereof, such
Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and (I)
the prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder and
(II) such prospectus is not promptly amended or modified in order to
be suitable for use in connection with resales by such Holder or (iv)
upon the request of either Purchaser with respect to any Registrable
Securities which it acquired directly from the Company or the
Guarantor or an affiliate of the Company or the Guarantor and, with
respect to other Registrable Securities held by it, if such Purchaser
is not permitted, in the opinion of nationally-recognized counsel to
such Purchaser, pursuant to any law or applicable interpretations of
the staff of the SEC, to participate in the Exchange Offer and thereby
receive securities that are freely tradeable without restriction
(other than a prospectus delivery requirement) under the Securities
Act and applicable blue sky or state securities laws (any of the
events specified in (i)- (iv) being a "Shelf Registration Event" and
the date of occurrence thereof, the "Shelf Registration Event Date"),
the Company and the Guarantor shall, at the Company's expense, cause
to be filed as promptly as practicable after such Shelf Registration
Event Date, as the case may be, and, in any event, in the case of (i),
(iii) and (iv) above, within 180 days after the Issue Date, and in the
case of (ii) above, as soon as reasonably practicable after the 210
day period set forth therein (notwithstanding in the case of (ii)
above, the Company shall remain liable for the increases in
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interest set forth in Section 2(e) until the effectiveness of the
Shelf Registration Statement), a Shelf Registration Statement
providing for the sale by the Holders of any and all of the
Registrable Securities, and shall use their reasonable best efforts to
have such Shelf Registration Statement declared effective by the SEC
as soon as reasonably practicable after its filing with the SEC. No
Holder may include any of its Registrable Securities in any Shelf
Registration pursuant to this Agreement unless and until such Holder
furnishes to the Company in writing such information as the Company
may, after conferring with counsel with regard to information relating
to Holders that would be required by the SEC to be included in such
Shelf Registration Statement or Prospectus included therein,
reasonably request for inclusion in any Shelf Registration Statement
or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish to the Company all
information with respect to such Holder necessary to make the
information previously furnished to the Company by such Holder not
materially misleading.
The Company and the Guarantor agree to use their reasonable
best efforts to keep the Shelf Registration Statement continuously
effective for a period until the earlier of 36 months following the
Issue Date (or for such longer period if extended pursuant to the last
sentence of Section 3 hereof (the "Applicable Period")) or for such
shorter period which will terminate when all of the Registrable
Securities covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement or otherwise cease to be
Registrable Securities (the "Effectiveness Period"). The Company and
the Guarantor shall not permit any securities other than Registrable
Securities to be included in the Shelf Registration. The Company and
the Guarantor further agree, if necessary, to supplement or 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 by the Securities Act or by
any other rules and regulations thereunder for shelf registrations,
and the Company agrees to furnish to the Holders copies of any such
supplement or amendment promptly after its being used or filed with
the SEC.
c. Expenses. The Company and the Guarantor shall pay
all Registration Expenses in connection with the registration pursuant
to Section 2(a) or 2(b) hereof and will pay the reasonable fees and
disbursements of any one counsel designated in writing by the Majority
Holders to act as counsel for the Holders in connection with a Shelf
Registration Statement. Except as provided herein, each Holder shall
pay all expenses of its counsel, underwriting discounts and
commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the
Shelf Registration Statement.
d. Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf
Registration Statement pursuant to Section 2(b) hereof will not be
deemed to have become effective unless it has been declared effective
by the SEC; provided, however, that if, after it has been declared
effective, the effectiveness of a Registration Statement is interfered
with by any stop order, injunction or other order or requirement of
the SEC or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the period
of such interference. The Company and the Guarantor will be deemed
not to have used their reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement, as
the case may be, to become, or to remain, effective during the
requisite period if they voluntarily take any action that would result
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in any such Registration Statement not being declared effective or in
the Holders covered thereby not being able to exchange or offer and
sell such Registrable Securities during that period unless (i) such
action is required by applicable law or interpretations of the staff
of the SEC or (ii) such action is taken by them in good faith and for
valid business reasons (not including avoidance of their obligations
hereunder).
e. Additional Interest. In the event that (i) the
Exchange Offer Registration Statement has not been filed with the SEC
on or prior to the 60th calendar day after the Issue Date, (ii) the
Exchange Offer Registration Statement is not declared effective on or
prior to the 150th calendar day after the Issue Date, (iii) the
Exchange Offer is not consummated on or prior to the 180th calendar
day after the Issue Date, (iv) a Shelf Registration Event shall have
occurred and the Shelf Registration Statement is not declared
effective on or prior to the 210th calendar day after the Issue Date
or (v) the Exchange Offer Registration Statement or the Shelf
Registration Statement is declared effective but thereafter ceases to
be effective or usable during the period specified herein (each such
event referred to in (i) through (v), a "Registration Default"), the
interest rate borne by the Securities or Exchange Notes which are
Registrable Securities shall be increased (the "Additional Interest")
by one-quarter of one percent (0.25%) per annum for the first 90-day
period immediately after the first such Registration Default. The
interest rate borne by such Registrable Securities shall increase by
an additional one-quarter of one percent (0.25%) per annum for each
subsequent 90-day period, in each case, until all Registration
Defaults have been cured (provided that in the event the Company has
abandoned the Exchange Offer because of the circumstances described in
Section 2(b)(i) or Section 2(b)(ii) hereof, then the effectiveness of
the Shelf Registration Statement shall be deemed a cure of such
Registration Defaults); provided, that the aggregate increase in such
interest rate pursuant to this Section 2(e) will in no event exceed
one percent (1.00%) per annum. Notwithstanding any of the above, it
is understood that Additional Interest pursuant to a Registration
Default under clause (v) above, as such clause (v) relates to an
Exchange Offer Registration Statement, shall only be payable to a
Participating Broker-Dealer that holds Registrable Securities subject
to a prospectus delivery requirement; provided, that such a
Registration Default may only be deemed to be occurring during the
period following the 150th day after the Issue Date until, subject to
an extension of the relevant 180-day period pursuant to the last
sentence of Section 3 hereof, 180 days after the consummation of the
Exchange Offer. Following the cure of all Registration Defaults, the
interest rate borne by such Registrable Securities will be reduced to
the original interest rate.
The Company shall notify the Trustee within three Business
Days after each and every date on which a Registration Default occurs.
Additional Interest shall be paid by depositing with the Trustee, in
trust, for the benefit of the Holders on or before the applicable
semiannual interest payment date, immediately available funds in sums
sufficient to pay the Additional Interest then due. The Additional
Interest due shall be payable on each interest payment date to the
record Holder entitled to receive the interest payment to be paid on
such date as set forth in the Indenture. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the
day following the applicable Registration Default.
f. Specific Enforcement. Without limiting the remedies
available to the Purchasers and the Holders, the Company and the
Guarantor acknowledge that any failure by the Company
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and the Guarantor to comply with their obligations under Section 2(a)
and Section 2(b) hereof may result in material irreparable injury to
the Purchasers or the Holders for which there is no adequate remedy at
law, that it would not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the
Purchasers or any Holder may obtain such relief as may be required to
specifically enforce the Company's and the Guarantor's obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company and the Guarantor with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company and the
Guarantor shall:
a. prepare and file with the SEC a Registration
Statement or Registration Statements as prescribed by Sections 2(a)
and 2(b) hereof within the relevant time period specified in Section 2
hereof on the appropriate form under the Securities Act, which form
(i) shall be selected by the Company, (ii) shall, in the case of a
Shelf Registration, be available for the sale of the relevant
Registrable Securities by the Holders thereof and (iii) shall comply
as to form in all material respects with the requirements of the
applicable form and include all financial statements required by the
SEC to be filed therewith; and use their reasonable best efforts to
cause such Registration Statement to become effective and remain
effective in accordance with Section 2 hereof; provided, however, that
if (1) such filing is pursuant to Section 2(b), or (2) a Prospectus
contained in an Exchange Offer Registration Statement filed pursuant
to Section 2(a) is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes,
before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Company shall furnish to and
afford the Holders of the Registrable Securities covered by the
relevant Shelf Registration Statement and each such Participating
Broker-Dealer covered by such Registration Statement, as the case may
be, their counsel and the managing underwriters, if any, a reasonable
opportunity to review copies of all such documents (including copies
of any documents to be incorporated by reference therein and all
exhibits thereto) proposed to be filed (at least five Business Days
prior to such filing). The Company and the Guarantor shall not file
any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded,
pursuant to this Section 3(a), an opportunity to review prior to the
filing thereof, if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably and promptly object in writing;
b. prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
Effectiveness Period or the Applicable Period, as the case may be; and
cause each Prospectus to be supplemented by any required prospectus
supplement and as so supplemented to be filed pursuant to Rule 424 (or
any similar provision then in force) under the Securities Act, and
comply with the provisions of the Securities Act, the Exchange Act and
the rules and regulations promulgated thereunder applicable to it with
respect to the disposition of all securities covered by such
Registration Statement during the Effectiveness Period or the
Applicable Period, as the case may be, in accordance with the intended
method or methods of distribution by the selling Holders thereof
described in this Agreement (including sales by any Participating
Broker-Dealer);
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c. in the case of a Shelf Registration, (i) notify each
Holder covered by such Shelf Registration Statement, at least 10 days
prior to filing, that a Shelf Registration Statement with respect to
the Registrable Securities is being filed and advising such Holder
that the distribution of Registrable Securities will be made in
accordance with the method selected by the Majority Holders; and (ii)
furnish to each Holder covered by such Shelf Registration Statement
and to each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities (it being understood that
the Company and the Guarantor hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders in accordance with the terms hereof, in connection
with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto);
d. in the case of a Shelf Registration, use their
reasonable best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of
such jurisdictions by the time the applicable Registration Statement
is declared effective by the SEC as any Holder covered by a
Registration Statement and each underwriter of an underwritten
offering of Registrable Securities shall reasonably request in advance
of such date of effectiveness, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
Holder and underwriter to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder;
provided, however, that the Company and the Guarantor shall not be
obligated to qualify as foreign corporations in any jurisdiction in
which they are not so qualified or to take any action that would
subject them to general consent to service of process in any
jurisdiction in which they are not now so subject or to subject them
to general taxation in any such jurisdiction in which they are not now
so subject;
e. in the case of (1) a Shelf Registration or (2)
Participating Broker-Dealers who have notified the Company that they
will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(s) hereof, promptly
notify each Holder covered by such Shelf Registration Statement, or
such Participating Broker-Dealers, as the case may be, their counsel
and the managing underwriters, if any, and promptly confirm such
notice in writing (i) when a Registration Statement has become
effective and when any post-effective amendments and supplements
thereto become effective, (ii) of any request by the SEC or any state
securities authority for amendments and supplements to a Registration
Statement or Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by
the SEC or any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if the Company or the Guarantor
receives any notification with respect to the suspension of the
qualification of the Registrable Securities or the Exchange Notes to
be sold by any Participating Broker-Dealer for offer or sale in any
jurisdiction or the initiation of any proceeding for such purpose, (v)
of the happening of any event or the failure of any event to occur or
the discovery of any facts, during the period a Registration Statement
is effective which makes any statement made in such Registration
Statement or the related Prospectus untrue in any material respect or
which causes such Registration Statement or Prospectus to omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were
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made, not misleading and (vi) of the Company's reasonable
determination that a post-effective amendment to the Registration
Statement would be appropriate;
f. make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment;
g. in the case of a Shelf Registration, furnish to each
Holder covered by such Shelf Registration Statement, without charge,
at least one conformed copy of each Registration Statement relating to
such Shelf Registration and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits
thereto, unless requested);
h. in the case of a Shelf Registration, cooperate with
the selling Holders to facilitate the timely preparation and delivery
of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and cause such Registrable Securities
to be in such denominations (consistent with the provisions of the
Indenture) and registered in such names as the Holders or the
underwriters may reasonably request at least two Business Days prior
to the closing of any sale of Registrable Securities;
i. in the case of a Shelf Registration or an Exchange
Offer Registration, upon the occurrence of any circumstance
contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi)
hereof, use their reasonable best efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; and
to notify each Holder to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the Company has
amended or supplemented the Prospectus to correct such misstatement or
omission;
j. in the case of a Shelf Registration, a reasonable
time prior to the filing of any document which is to be incorporated
by reference into a Registration Statement or a Prospectus after the
initial filing of a Registration Statement, provide a reasonable
number of copies of such document to the Holders covered by such Shelf
Registration Statement; and make such of the representatives of the
Company and the Guarantor as shall be reasonably requested by such
Holders or the Purchasers on behalf of such Holders available for
discussion of such document;
k. obtain a CUSIP number for all Exchange Notes or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee
with printed certificates for the Exchange Notes or the Registrable
Securities, as the case may be, in a form eligible for deposit with
the Depository;
l. cause the Indenture to be qualified under the TIA, in
connection with the registration of the Exchange Notes or Registrable
Securities, as the case may be, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with the terms of the
TIA and execute, and use their
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reasonable best efforts to cause the Trustee to execute, all documents
as may be required to effect such changes and all other forms and
documents required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
m. in the case of a Shelf Registration, enter into such
agreements as are customary in shelf registrations and take all such
other appropriate actions as are reasonably requested 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 Holders of such Registrable
Securities and the underwriters (if any), with respect to the business
of the Company and its subsidiaries as then conducted or proposed to
be conducted and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers in shelf
registrations to underwriters and selling securityholders, and confirm
the same if and when requested; (ii) obtain opinions of counsel to the
Company and the Guarantor and updates thereof in form and substance
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 Holder and the underwriters
(if any) covering the matters customarily covered in opinions
requested in shelf registrations and such other matters as may be
reasonably requested by such Holders and underwriters; (iii) obtain
"cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the recipients from the independent
certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to be,
included in the Registration Statement), addressed to the selling
Holders and to each of the underwriters, such letters to be in
customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with shelf registrations and such
other matters as reasonably requested by such selling Holders and
underwriters (including, without limitation, negative assurance with
respect to any interim financial period included in the Registration
Statement or the Prospectus and with respect to any period after the
date of the latest balance sheet included therein and up to five days
prior to the closing date in respect of any such sale); and (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to selling Holders of a majority in aggregate principal
amount of Registrable Securities covered by such Registration
Statement and the managing underwriters or agents) with respect to all
parties to be indemnified pursuant to Section 4 hereof (including,
without limitation, such underwriters and Holders). The above shall
be done at each closing under such underwriting agreement, or as and
to the extent required thereunder;
n. if (1) a Shelf Registration is filed pursuant to
Section 2(b) or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to
be delivered under the Securities Act by any Participating
Broker-Dealer who seeks to sell Exchange Notes during the applicable
period, make available for inspection by any selling Holder being
sold, or each such Participating Broker-Dealer, as the case may be,
any underwriter participating in any such disposition of Registrable
Securities, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
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Broker-Dealer, as the case may be (collectively, the "Inspectors"), at
the offices where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries (collectively, the
"Records") as shall be reasonably necessary to enable the Inspectors
to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Company and its
subsidiaries to supply all relevant information in each case
reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Company determines, in good
faith, to be confidential and any Records which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors
unless (i) the disclosure of such Records is necessary in the opinion
of nationally-recognized counsel to avoid or correct a misstatement or
omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or (iii) the information in such Records has
been made generally available to the public. Each selling Holder and
each Participating Broker Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in any securities other than for the purposes
expressly set forth in this Agreement unless and until such is made
generally available to the public. Each selling Holder and each such
Participating Broker Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is sought in a
court of competent jurisdiction, give prompt notice to the Company and
allow the Company at its expense to undertake appropriate action to
prevent disclosure of the Records deemed confidential (it being
understood that the Holders shall at all times be unrestricted in
complying with any order of any court or tribunal of competent
jurisdiction);
o. comply with all applicable rules and regulations of
the SEC and make generally available to the Company's 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 at the end of
any 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. if an Exchange Offer is to be consummated, upon
delivery of the Registrable Securities by Holders to the Company (or
to such other Person as directed by the Company) in exchange for the
Exchange Notes, the Company shall xxxx, or cause to be marked, on such
Registrable Securities delivered by such Holders that such Registrable
Securities are being cancelled in exchange for the Exchange Notes; in
no event shall such Registrable Securities be marked as paid or
otherwise satisfied;
q. 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;
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r. use their reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable
Securities covered by a Registration Statement contemplated hereby;
s. in the case of the Exchange Offer Registration
Statement (i) include in the Exchange Offer Registration Statement a
section entitled "Plan of Distribution," which section shall be
reasonably acceptable to the Purchasers or another representative of
the Participating Broker-Dealers, and which shall contain a summary
statement of the positions taken or policies made by the staff of the
SEC with respect to the potential "underwriter" status of any
broker-dealer (a "Participating Broker-Dealer") that holds Registrable
Securities acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by
the staff of the SEC or such positions or policies, in the reasonable
judgment of the Purchasers or such other representative, represent the
prevailing views of the staff of the SEC, including a statement that
any such broker-dealer who receives Exchange Notes for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange
Notes, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request (it being
understood that the Company hereby consents to the use of the
Prospectus forming part of the Exchange Offer Registration Statement
or any amendment or supplement thereto, by any Person subject to the
prospectus delivery requirements of the SEC, including all
Participating Broker-Dealers, in connection with the sale or transfer
of the Exchange Notes covered by the Prospectus or any amendment or
supplement thereto), (iii) use their reasonable best efforts to keep
the Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period
of time as such Persons must comply with such requirements in order to
resell the Exchange Notes; provided, however, that such period shall
not be required to exceed 180 days (or such longer period if such
180-day period is extended pursuant to the last sentence of Section 3
hereof) and (iv) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer: (1) the following provision or a
provision substantially similar thereto:
"If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a
result of market-making activities or other trading
activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Notes received in respect of such
Registrable Securities pursuant to the Exchange Offer";
and (2) a statement to the effect that by a broker-dealer making the
acknowledgement described in clause (1) and by delivering a Prospectus
in connection with the exchange of Registrable
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Securities, the broker-dealer will not be deemed to admit that it is
an underwriter within the meaning of the Securities Act.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such
Registrable Securities, as the Company may from time to time reasonably request
in writing. The Company may exclude from such registration the Registrable
Securities of any seller who fails to furnish such information within a
reasonable time after receiving such request.
In the case of (1) a Shelf Registration Statement or (2)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(s) hereof, each Holder agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 3(e)(ii), 3(e)(iii), 3(e)(v) or 3(e)(vi) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(i) hereof or until
it is advised in writing (the "Advice") by the Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company (at the Company's expense) all copies in
such Holder's possession, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities or
Exchange Notes, as the case may be, current at the time of receipt of such
notice. If the Company or the Guarantor shall give any such notice to suspend
the disposition of Registrable Securities or Exchange Notes, as the case may
be, pursuant to a Registration Statement or the Prospectus that is then
available pursuant to the Exchange Offer Registration Statement, the Company
and the Guarantor shall file and use their reasonable best efforts to have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Registration Statement or such Prospectus, and shall extend
the period during which such Registration Statement shall be maintained
effective (or such Prospectus is required to be made available) pursuant to
this Agreement by the number of days in the period from and including the date
of the giving of such notice to and including the date when the Company shall
have made available to the Holders (x) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (y) the Advice.
4. Indemnification and Contribution. a. The Company and
the Guarantor shall indemnify and hold harmless each Purchaser, each Holder,
each Participating Broker-Dealer, each underwriter who participates in an
offering of Registrable Securities, their respective affiliates, each Person,
if any, who controls any of such parties (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) and each of their
respective directors, officers, employees and agents, as follows:
(a) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, arising
out of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment
thereto), covering Registrable Securities or Exchange Notes, including
all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
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material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(b) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any court or governmental agency
or body, commenced or threatened, or of any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Section 4(d) below)
any such settlement is effected with the prior written consent of the
Company; and
(c) from and against any and all expenses whatsoever, as
incurred (including the fees and disbursements of counsel chosen by
the Purchasers, such Holder, such Participating Broker-Dealer or any
underwriter (except to the extent otherwise provided in Section 4(c)
hereof)), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
court or governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) of this
Section 4(a);
provided, however, that this Section 4(a) shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished in writing to the
Company by either Purchaser, any Holder, any Participating Broker-Dealer or any
underwriter with respect to either Purchaser, Holder, Participating
Broker-Dealer or underwriter, as the case may be, expressly for use in the
Registration Statement (or any amendment thereto) or any Prospectus (or any
amendment or supplement thereto).
b. Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company and the Guarantor, each Purchaser, each
underwriter who participates in an offering of Registrable Securities and the
other selling Holders and each of their respective directors, officers
(including each officer of the Company who signed the Registration Statement),
employees and agents and each Person, if any, who controls the Company and the
Guarantor, either Purchaser, any underwriter or any other selling Holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), from and against any and all loss, liability, claim, damage and
expense whatsoever described in the indemnity contained in Section 4(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such selling Holder with respect to such Holder expressly for
use in the Registration Statement (or any amendment thereto), or any such
Prospectus (or any amendment or supplement thereto); provided, however, that,
in the case of Shelf Registration Statement, no such Holder shall be liable for
any claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Registrable Securities pursuant to such Shelf
Registration Statement.
c. Each indemnified party shall give notice as promptly
as reasonably practicable
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to each indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder except to the extent it is materially prejudiced as a result thereof
and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (expect with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution is sought under this Section 4 (whether or not
the indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of
any indemnified party.
d. If at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel, such indemnifying party agrees that, unless such
indemnifying party is contesting the payment of such fees and expenses in good
faith, it shall be liable for any settlement of the nature contemplated by
Section 4(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 90 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received written
notice of all of the terms of such settlement at least 60 days prior to such
settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement.
e. If the indemnification provided for in Section 4(a)
or (b) hereof is for any reason unavailable to or insufficient to hold harmless
an indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantor on the one hand and the Holder, the Participating Broker-Dealer or
Purchaser, as the case may be, on the other hand from the offering of the
Securities pursuant to the Purchase Agreement or (ii) if the allocation
provided by clause (i) 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 Company and the Guarantor
on the one hand and of the Holder, the Participating Broker-Dealer or
Purchaser, as the case may be, on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Guarantor on the one
hand and the Holder, the Participating Broker-Dealer or the Purchasers, as the
case may be, 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
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the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Guarantor, or by the Holder, the
Participating Broker-Dealer or the Purchasers, as the case may be, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Guarantor and the Holders and the Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 4(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section 4(e).
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.
For purposes of this Section 4(e), each Person, if any, who
controls a Holder, a Purchaser or a Participating Broker-Dealer (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
shall have the same rights to contribution as such other Person, and each
director of the Company and the Guarantor, each officer of the Company who
signed the Registration Statement, and each Person, if any, who controls the
Company and the Guarantor (within the meaning of Section 15 of the Securities
act or Section 20 of the Exchange Act) shall have the same rights to
contribution as the Company and the Guarantor.
5. Participation in Underwritten Registrations. No
Holder 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
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required under the
terms of such underwriting arrangements.
6. Selection of Underwriters. The Holders covered by
the Shelf Registration Statement who desire to do so may sell the securities
covered by such Shelf Registration in an underwritten offering. In any such
underwritten offering, the underwriter or underwriters and manager or managers
that will administer the offering will be selected by the Holders of a majority
in aggregate principal amount of the Registrable Securities included in such
offering; provided, however, that such underwriters and managers must be
reasonably satisfactory to the Company.
7. Miscellaneous.
a. Rule 144 and Rule 144A. For so long as the Company
or any Guarantor is subject to the reporting requirements of Section 13 or 15
of the Exchange Act and any Registrable Securities remain outstanding, the
Company and the Guarantor covenant that they will comply with their reporting
obligations under the Securities Act and Section 13(a) or 15(d) of the Exchange
Act and the rules and regulations adopted by the SEC thereunder, that if they
cease to be required to file periodic reports thereunder, they will upon the
request of any Holder (a) make publicly available such information as is
necessary to permit sales pursuant to Rule 144 under the Securities Act, (b)
deliver such information to a prospective purchaser as is necessary to permit
sales pursuant to Rule 144A under the Securities Act,
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and (c) take such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable such Holder to
sell its Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (i) Rule 144 under the
Securities Act, as such rule may be amended from time to time, (ii) Rule 144A
under the Securities Act, as such rule may be amended from time to time, or
(iii) any similar rules or regulations hereafter adopted by the SEC. For so
long as the Company or the Guarantor is subject to the reporting requirements
of Section 13 or 15 of the Exchange Act and any Registrable Securities remain
outstanding, upon the request of any Holder, the Company and the Guarantor will
deliver to such Holder a written statement as to whether they have complied
with such requirements.
b. No Inconsistent Agreements. The Company and the
Guarantor have not entered into nor will the Company and the Guarantor on or
after the date of this Agreement enter into any agreement which may require any
action which would violate the rights granted to the Holders in this Agreement
or otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and do not under any
circumstances require any action which would violate the rights granted to the
holders of the Company's other issued and outstanding securities under any
other agreements in effect on the date hereof.
c. Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given, otherwise than with
the prior written consent of (A) the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Securities and
(B) in circumstances that would adversely affect the Participating Broker-
Dealers, the Participating Broker-Dealers holding not less than a majority in
aggregate principal amount of the Exchange Notes held by all Participating
Broker-Dealers; provided, however, that Section 4 and this Section 7(c) may not
be amended, modified or supplemented without the prior written consent of each
Holder and each Participating Broker-Dealer (including any Person who was a
Holder or Participating Broker-Dealer of Registrable Securities or Exchange
Notes, as the case may be, disposed of pursuant to any Registration Statement).
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 Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders 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.
d. Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (i) if to a Holder, at the most current address given by
such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 7(d), which address initially is, with respect to
the Purchasers, the address set forth in the Purchase Agreement; and (ii) if to
the Company or the Guarantor, initially at the Company's address set forth in
the Purchase Agreement to the attention of General Counsel and thereafter at
such other address, notice of which is given in accordance with the provisions
of this Section 7(d), with a copy to Kramer, Levin, Naftalis & Xxxxxxx, 000
Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: at the
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time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next Business
Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands, or other communications
shall be concurrently delivered by the Person giving the same to the Trustee,
at the address specified in the Indenture.
e. Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of the Purchasers, including, without limitation and without the need for an
express assignment, subsequent Holders; provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Purchase Agreement or
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.
f. Third Party Beneficiary. Each of the Purchasers
shall be a third party beneficiary of the agreements made hereunder between the
Company and the Guarantor, on the one hand, and the Holders, on the other hand,
and shall have the right to enforce such agreements directly to the extent it
deems such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
g. 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.
h. Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
i. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO
HAVE BEEN MADE IN THE STATE OF NEW YORK. THE VALIDITY AND INTERPRETATION OF
THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS. EACH OF
THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
j. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the validity, legality
and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
k. 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
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Securities held by the Company or the Guarantor or their affiliates (as such
term is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
l. Entire Agreement. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all
prior oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversation and memoranda between the
Purchasers on the one hand and the Company and the Guarantor on the other, or
between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect to
the subject matter hereof and thereof are merged herein and replaced hereby.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
MAXXAM GROUP HOLDINGS INC.
By: /s/ XXXXX X. XXXX
-------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
MAXXAM INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
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Confirmed and accepted as of
the date first above
written:
BEAR, XXXXXXX & CO. INC.
By: [Signature Illegible]
------------------------------------------------
Name:
Title:
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By: /s/ XXXXX X. XXXXXXX
------------------------------------------------
Name Xxxxx X. Xxxxxxx
Title: Managing Director
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