PLY GEM INDUSTRIES, INC. 13⅛% Senior Subordinated Notes due 2014 REGISTRATION RIGHTS AGREEMENT
Exhibit
4.20
EXECUTION COPY
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$150,000,000
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PLY
GEM INDUSTRIES, INC.
13⅛%
Senior Subordinated Notes due 2014
January
11, 2010
UBS
Securities LLC (“UBS”)
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As
Representative of the Several Initial Purchasers
Dear
Ladies and Gentlemen:
Ply Gem
Industries, Inc., a Delaware corporation (the “Company”), proposes to issue
and sell to UBS, as representative of the Initial Purchasers (collectively, the
“Initial Purchasers”),
upon the terms set forth in a purchase agreement dated as of January 6, 2010
(the “Purchase
Agreement”), $150,000,000 aggregate principal amount of its 13⅛% Senior
Subordinated Notes due 2014 (the “Initial Securities”) to be
unconditionally guaranteed on a senior subordinated unsecured basis by Ply Gem
Holdings, Inc. (“Holdings”) and the entities
designated as guarantors in Schedule B to the Purchase Agreement (the
“Subsidiary Guarantors”
and, together with Holdings, the “Guarantors”). The
Initial Securities will be issued pursuant to an indenture (the “Indenture”), dated of even
date herewith, among the Company, the Guarantors and U.S. Bank National
Association, as trustee (the “Trustee”). As an
inducement to the Initial Purchasers to enter into the Purchase Agreement, the
Company agrees with the Initial Purchasers, for the benefit of the holders of
the Initial Securities (including the Initial Purchasers), the Exchange
Securities (as defined below) and the Private Exchange Securities (as defined
below) (collectively, the “Holders”), as
follows:
1. Registered Exchange
Offer. Unless not permitted by applicable law (after the
Company has complied with the ultimate paragraph of this Section 1), the Company
and the Guarantors shall prepare and, not later than 180 days (or if the 180th
day is not a business day, the first business day thereafter) (such 180th day or
first business day thereafter being an “Exchange Offer Filing
Deadline”) after the date on which the Initial Securities are first
issued (the “Issue
Date”), file with the Securities and Exchange Commission (the “Commission”) a registration
statement (the “Exchange Offer
Registration Statement”) on an appropriate form under the Securities Act
of 1933, as amended (the “Securities Act”), with respect
to a proposed offer (the “Registered Exchange Offer”) to
the Holders of Transfer Restricted Securities (as defined in Section 6(d)
hereof), who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and deliver to such
Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities (the “Exchange Securities”) of the
Company issued under the Indenture identical in all material
respects
to the Initial Securities (except for the transfer restrictions relating to the
Initial Securities and the provisions relating to the matters in Section 6
hereof) and that would be registered under the Securities Act. The
Company and the Guarantors shall use their commercially reasonable efforts to
(i) cause such Exchange Offer Registration Statement to become effective
under the Securities Act within 240 days after the Issue Date (or if the 240th
day is not a business day, the first business day thereafter) (such 240th (or
first business day thereafter) day being an “Effectiveness Deadline”) and
(ii) keep the Exchange Offer Registration Statement effective for not less
than 30 days (or longer, if required by applicable law) after the date
notice of the Registered Exchange Offer is mailed to the Holders (such period
being called the “Exchange
Offer Registration Period”).
If the
Company commences the Registered Exchange Offer, the Company, on behalf of
itself and the Guarantors, (i) will be entitled to consummate the
Registered Exchange Offer 30 days after such commencement (provided that
the Company has accepted all the Initial Securities theretofore validly tendered
in accordance with the terms of the Registered Exchange Offer) and
(ii) shall use commercially reasonable efforts to consummate the Registered
Exchange Offer no later than 40 days (or longer if required by applicable
law) after the date on which the Exchange Offer Registration Statement is
declared effective (or if the 40th day is not a business day, the first business
day thereafter), but in any event no later than 280 days after the Issue Date
(such 280th day (or longer if required by applicable law) being the “Consummation Deadline”) by the
Commission.
Following
the declaration of the effectiveness of the Exchange Offer Registration
Statement, the Company on behalf of itself and the Guarantors shall promptly
commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder of Transfer Restricted
Securities (as defined in Section 6(d) hereof) electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company or the Guarantors within the meaning of the Securities
Act, acquires the Exchange Securities in the ordinary course of such Holder’s
business and has no arrangements with any person to participate in the
distribution of the Exchange Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange Offer) to
trade such Exchange Securities from and after their receipt without any
limitations or restrictions under the Securities Act and without material
restrictions under the securities laws of the several states of the United
States.
The
Company and the Guarantors acknowledge that, pursuant to current interpretations
by the Commission’s staff of Section 5 of the Securities Act, in the
absence of an applicable exemption therefrom, (i) each Holder that is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading activities, for
Exchange Securities (an “Exchanging Dealer”), is
required to deliver a prospectus containing the information set forth in
(a) Annex A hereto on the cover of such prospectus, (b) Annex B hereto
in the “Exchange Offer Procedures” section and the “Purpose of the Exchange
Offer” section of such prospectus, and (c) Annex C hereto in the “Plan of
Distribution” section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) an Initial Purchaser that elects to sell
Exchange Securities acquired in exchange for Initial Securities constituting any
portion of an unsold allotment is required to deliver a prospectus
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containing
the information required by Item 507 or 508 of Regulation S-K under
the Securities Act, as applicable, in connection with such sale.
The
Company and the Guarantors shall use their commercially reasonable 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 Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement
thereto must be delivered by an Exchanging Dealer or an Initial Purchaser, such
period shall be the lesser of 180 days and the date on which all Exchanging
Dealers and the Initial Purchasers have sold all Exchange Securities held by
them (unless such period is extended pursuant to Section 3(j) below) and
(ii) the Company and the Guarantors shall make such prospectus and any
amendment or supplement thereto available to any broker-dealer for use in
connection with any resale of any Exchange Securities for a period of not less
than 180 days after the consummation of the Registered Exchange
Offer.
If, upon
consummation of the Registered Exchange Offer, any Initial Purchaser holds
Initial Securities acquired by it as part of the initial distribution, the
Company, on behalf of itself and the Guarantors and simultaneously with the
delivery of the Exchange Securities pursuant to the Registered Exchange Offer,
shall issue and deliver to such Initial Purchaser upon the written request of
such Initial Purchaser, in exchange (the “Private Exchange”) for the
Initial Securities held by such Initial Purchaser, a like principal amount of
debt securities of the Company issued under the Indenture and identical in all
material respects (including the existence of restrictions on transfer under the
Securities Act and the securities laws of the several states of the United
States, but excluding provisions relating to the matters described in Section 6
hereof) to the Initial Securities (the “Private Exchange
Securities”). The Initial Securities, the Exchange Securities
and the Private Exchange Securities are herein collectively called the “Securities”.
In
connection with the Registered Exchange Offer, the Company on behalf of itself
and the Guarantors 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
Registered Exchange Offer open for not less than 30 days (or longer, if
required by applicable law) after the date notice thereof is mailed to the
Holders;
(c) utilize
the services of a depositary for the Registered Exchange Offer, which may be the
Trustee or an affiliate of the Trustee;
(d) permit
Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the Registered
Exchange Offer shall remain open; and
(e) otherwise
comply in all material respects with all applicable laws.
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As soon
as practicable after the close of the Registered Exchange Offer or the Private
Exchange, as the case may be, the Company shall:
(x) accept
for exchange all the Initial Securities validly tendered and not withdrawn
pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver
to the Trustee for cancellation all the Initial Securities so accepted for
exchange; and
(z) cause
the Trustee to authenticate and deliver promptly to each Holder of the Initial
Securities, Exchange Securities or Private Exchange Securities, as the case may
be, equal in principal amount to the Initial Securities of such Holder so
accepted for exchange.
The
Indenture will provide that the Exchange Securities will not be subject to the
transfer restrictions set forth in the Indenture and that all the Securities
will vote and consent together on all matters as one class and that none of the
Securities will have the right to vote or consent as a class separate from one
another on any matter.
Interest
on each Exchange Security and Private Exchange Security issued pursuant to the
Registered Exchange Offer and in the Private Exchange will accrue from the last
interest payment date on which interest was paid on the Initial Securities
surrendered in exchange therefor or, if no interest has been paid on the Initial
Securities, from the date of original issue of the Initial
Securities.
Each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company that at the time of the consummation of the Registered
Exchange Offer (i) any Exchange Securities received by such Holder have been
acquired in the ordinary course of business, (ii) such Holder has no
arrangements or understanding with any person to participate in the distribution
of the Exchange Securities within the meaning of the Securities Act, (iii) such
Holder is not an “affiliate,” as defined in Rule 405 of the Securities Act,
of the Company or if it is an affiliate, such Holder will comply with the
registration and prospectus delivery requirements of the Securities Act to the
extent applicable, (iv) if such Holder is not a broker-dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the Exchange
Securities and (v) if such Holder is a broker-dealer, that it will receive
Exchange Securities for its own account in exchange for Initial Securities that
were acquired as a result of market-making activities or other trading
activities and that it will acknowledge its obligations to deliver a prospectus
in connection with any resale of such Exchange Securities.
Notwithstanding
any other provisions hereof, the Company and the Guarantors will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and
any prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, 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 not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration
Statement, and any supplement to such prospectus, does not
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include
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
If
following the date hereof there has been announced a change in Commission policy
with respect to exchange offers that in the reasonable opinion of counsel to the
Company raises a substantial question as to whether the Registered Exchange
Offer is permitted by applicable federal law, the Company and the Guarantors
will seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate the Registered Exchange Offer. The
Company and the Guarantors will pursue the issuance of such a decision to the
Commission staff level. In connection with the foregoing, the Company
and the Guarantors will take all such other actions as may be requested by the
Commission or otherwise required in connection with the issuance of such
decision, including without limitation (i) participating in telephonic
conferences with the Commission, (ii) delivering to the Commission staff an
analysis prepared by counsel to the Company setting forth the legal bases, if
any, upon which such counsel has concluded that the Registered Exchange Offer
should be permitted and (iii) diligently pursuing a resolution (which need not
be favorable) by the Commission staff.
2. Shelf
Registration. If, (i) because of any change in law or in
applicable interpretations thereof by the staff of the Commission, the Company
is not permitted to effect a Registered Exchange Offer, as contemplated by
Section 1 hereof, (ii) the Registered Exchange Offer is not consummated by
the 240th day after the Issue Date (or if the 240th day is not a business day,
the first business day thereafter), (iii) any Initial Purchaser so requests
within 10 business days following the consummation of the Registered Exchange
Offer with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging
Dealer) notifies the Company within 10 business days following consummation of
the Registered Exchange Offer that such Holder is not eligible to participate in
the Registered Exchange Offer or such Holder may not resell the Exchange Notes
acquired by it in the Registered Exchange Offer to the public without delivering
a prospectus and the prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
such Holder is a broker-dealer and holds Initial Securities that are part of an
unsold allotment from the original sale of the Initial Securities, the Company
and the Guarantors shall take the following actions (the date on which any of
the conditions described in the foregoing clauses (i) through (iv) occur,
including in the case of clause (iii) or (iv) the receipt of the required
notice, being a “Trigger
Date”):
(a) The
Company and the Guarantors shall, at their cost, promptly, but in no event more
than 180 days after the Trigger Date (or if the 180th day is not a business day,
the first business day thereafter) (such 180th day being a “Shelf Registration
Statement Filing Deadline”, together with the Exchange Offer Filing Deadline,
each, a “Filing
Deadline”), file with the Commission and thereafter (i) in the case of
Section 2(i) above, use their commercially reasonable efforts to cause to be
declared effective (unless it becomes effective automatically upon filing) on or
prior to the 240th calendar day following the Issue Date and (ii) in the case of
Section 2(ii) through 2(iv) above, use their commercially reasonable efforts to
cause to be declared effective (unless it becomes
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effective
automatically upon filing) on or prior to the 60th day after the Shelf
Registration Statement Filing Deadline (each of such days being an “Effectiveness Deadline”) a
registration statement (the “Shelf Registration Statement”
and, together with the Exchange Offer Registration Statement, a “Registration Statement”) on an
appropriate form under the Securities Act relating to the offer and sale of the
Transfer Restricted Securities (as defined in Section 6(d) hereof) by the
Holders thereof from time to time in accordance with the methods of distribution
set forth in the Shelf Registration Statement and Rule 415 under the Securities
Act (hereinafter, the “Shelf
Registration”); provided, however, that no
Holder (other than an Initial Purchaser) shall be entitled to have the
Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all the provisions of this Agreement
applicable to such Holder; provided further that
in no event shall the Company be required to file the Shelf Registration
Statement or have such Shelf Registration Statement declared effective prior to
the applicable deadlines for the Exchange Offer Registration
Statement.
(b) The
Company and the Guarantors shall use their commercially reasonable efforts to
keep the Shelf Registration Statement continuously effective in order to permit
the prospectus included therein to be lawfully delivered by the Holders of the
relevant Securities, for a period of one year (or for such longer period if
extended pursuant to Section 3(j) below) from the effective date of the
Shelf Registration Statement or such shorter period that will terminate (i) when
all the Securities covered by the Shelf Registration Statement have been sold
pursuant thereto or (ii) on the earliest date that is no less than two years
after the Issue Date and on which all the Securities covered by the Shelf
Registration Statement (except for Securities held by an affiliate of the
Company) are no longer subject to any restrictions on transfer under the
Securities Act including those pursuant to Rule 144 (the “Shelf Registration
Period”). Except as provided elsewhere in this Agreement, the
Company and the Guarantors shall be deemed not to have used their commercially
reasonable efforts to keep the Shelf Registration Statement effective during the
requisite period if they voluntarily take any action that would result in
Holders of Securities covered thereby not being able to offer and sell such
Securities during that period, unless such action is required by applicable
law.
(c) Notwithstanding
any other provisions of this Agreement to the contrary, the Company and the
Guarantors shall cause the Shelf Registration Statement and the related
prospectus and any amendment or supplement thereto, as of the effective date of
the Shelf Registration Statement, amendment or supplement, (i) to comply in
all material respects with the applicable requirements of the Securities Act and
the rules and regulations of the Commission and (ii) not to contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
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3. Registration
Procedures. In connection with any Shelf Registration
contemplated by Section 2 hereof and, to the extent applicable, any
Registered Exchange Offer contemplated by Section 1 hereof, the following
provisions shall apply:
(a) The
Company and the Guarantors shall (i) furnish to each Initial Purchaser,
prior to the filing thereof with the Commission, a copy of the Registration
Statement and each amendment thereof and each supplement, if any, to the
prospectus included therein and, in the event that an Initial Purchaser (with
respect to any portion of an unsold allotment from the original offering) is
participating in the Registered Exchange Offer or the Shelf Registration
Statement, the Company and the Guarantors shall use their commercially
reasonable efforts to reflect in each such document, when so filed with the
Commission, such comments as such Initial Purchaser reasonably may propose; (ii)
include the information set forth in Annex A hereto on the cover, in Annex
B hereto in the “Exchange Offer Procedures” section and the “Purpose of the
Exchange Offer” section and in Annex C hereto in the “Plan of Distribution”
section of the prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto in the Letter
of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if
requested by an Initial Purchaser, include the information required by Item 507
or 508 of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement; (iv)
include within the prospectus contained in the Exchange Offer Registration
Statement a section entitled “Plan of Distribution,” reasonably acceptable to
the Initial Purchasers, which shall contain a summary statement of the positions
taken or policies made by the staff of the Commission with respect to the
potential “underwriter” status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the “Exchange
Act”)) of Exchange Securities received by such broker-dealer in the
Registered Exchange Offer (a “Participating Broker-Dealer”),
whether such positions or policies have been publicly disseminated by the staff
of the Commission or such positions or policies, in the reasonable judgment of
the Initial Purchasers based upon advice of counsel (which may be in-house
counsel), represent the prevailing views of the staff of the Commission; and (v)
in the case of a Shelf Registration Statement, include in the prospectus
included in the Shelf Registration Statement (or, if permitted by Commission
Rule 430B(b), in the prospectus supplement that becomes a part thereof pursuant
to Commission Rule 430B(f)) that is delivered to any Holder pursuant to Section
3(d) and (f) the names of the Holders who propose to sell Transfer Restricted
Securities pursuant to the Shelf Registration Statement as selling
securityholders; provided that such
Holders have provided the Company with such information prior to the filing of
the Shelf Registration Statement or the prospectus supplement, as
applicable.
(b) The
Company and the Guarantors shall give written notice to the Initial Purchasers,
the Holders of the Securities and, with respect to clauses (ii) through (v)
below, any Participating Broker-Dealer from whom the Company has received prior
written notice that it will be a Participating Broker-Dealer in the Registered
Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof shall be
accompanied by an instruction to suspend the use of the prospectus until the
requisite changes have been made):
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(i) when the
Registration Statement or any amendment thereto has been filed with the
Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;
(ii) of any
request by the Commission for amendments or supplements to the Registration
Statement or the prospectus included therein or for additional
information;
(iii) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose, of
the issuance by the Commission of a notification of objection to the use of the
form on which the Registration Statement has been filed, and of the happening of
any event that causes the Company to become an “ineligible issuer,” as defined
in Commission Rule 405;
(iv) of the
receipt by the Company or its legal counsel of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the
happening of any event that requires the Company to make changes in the
Registration Statement or the prospectus in order that the Registration
Statement or the prospectus do not contain an untrue statement of a material
fact nor omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the prospectus, in
light of the circumstances under which they were made) not
misleading.
(c) The
Company and the Guarantors shall make every commercially reasonable effort to
obtain the withdrawal at the earliest possible time of any order suspending the
effectiveness of the Registration Statement.
(d) If not
otherwise available on the Commission’s Electronic Data Gathering, Analysis and
Retrieval (“XXXXX”)
System or similar system, upon the written request of a Holder of Securities
included within the coverage of the Shelf Registration, the Company and the
Guarantors shall furnish to such Holder, without charge, at least one copy of
the Shelf Registration Statement and any post-effective amendment or supplement
thereto, including financial statements and schedules, and, if such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference). The Company and the Guarantors shall not, without the
prior consent of the Initial Purchasers, and each Initial Purchaser, Holder of
the Securities and Participant Broker-Dealer shall not, without the prior
written consent of the Company, make any offer relating to the Securities that
would constitute a “free writing prospectus”, as defined in Commission Rule
405.
(e) If not
otherwise available on the Commission’s XXXXX System or similar system, upon the
request of an Initial Purchaser, Exchanging Dealer or Holder, the Company and
the Guarantors shall deliver to such Exchanging Dealer and such
Initial
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Purchaser,
and to such Holder who so requests, without charge, at least one copy of the
Exchange Offer Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if any Initial Purchaser or
any such Holder requests, all exhibits thereto (including those incorporated by
reference).
(f) The
Company and the Guarantors shall, during the Shelf Registration Period, deliver
to each Holder of Securities included within the coverage of the Shelf
Registration, without charge, as many copies of the prospectus (including each
preliminary prospectus) included in the Shelf Registration Statement and any
amendment or supplement thereto as such person may reasonably
request. The Company consents, subject to the provisions of this
Agreement, to the use of the prospectus or any amendment or supplement thereto
by each of the selling Holders of the Securities in connection with the offering
and sale of the Securities covered by the prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The
Company and the Guarantors shall deliver to each Initial Purchaser, any
Exchanging Dealer, any Participating Broker-Dealer and such other persons
required to deliver a prospectus following the Registered Exchange Offer,
without charge, as many copies of the final prospectus included in the Exchange
Offer Registration Statement and any amendment or supplement thereto as such
persons may reasonably request. The Company consents, subject to the
provisions of this Agreement, to the use of the prospectus or any amendment or
supplement thereto by any Initial Purchaser, if necessary, any Participating
Broker-Dealer and such other persons required to deliver a prospectus following
the Registered Exchange Offer in connection with the offering and sale of the
Exchange Securities covered by the prospectus, or any amendment or supplement
thereto, included in such Exchange Offer Registration Statement.
(h) Prior to
any public offering of the Securities pursuant to any Registration Statement,
the Company on behalf of itself and the Guarantors shall use its commercially
reasonable efforts to register or qualify or cooperate with the Holders of the
Securities included therein and their respective counsel in connection with the
registration or qualification of the Securities for offer and sale under the
securities or “blue sky” laws of such states of the United States as any Holder
of the Securities reasonably requests in writing and do any and all other acts
or things necessary or advisable to enable the offer and sale in such
jurisdictions of the Securities covered by such Registration Statement; provided, however, that the
Company shall not be required to (i) qualify generally to do business in
any jurisdiction where it is not then so qualified or (ii) take any action
which would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
(i) Unless
the Securities are in book-entry form, the Company and the Guarantors shall
cooperate with the Holders of the Securities to facilitate the timely
preparation and delivery of certificates representing the Securities to be sold
pursuant to any Registration Statement free of any restrictive legends
(consistent with the provisions of the Indenture) and in such denominations and
registered in such names as the Holders may request a reasonable period of time
prior to sales of the Securities pursuant to such Registration
Statement.
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(j) Upon the
occurrence of any event contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is required to
maintain an effective Registration Statement, the Company and the Guarantors
shall promptly prepare and file a post-effective amendment to the Registration
Statement or a supplement to the related prospectus and any other required
document so that, as thereafter delivered to Holders of the Securities or
purchasers of Securities, the prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. If the Company notifies the
Initial Purchasers, the Holders of the Securities and any known Participating
Broker-Dealer in accordance with paragraphs (ii) through (v) of Section 3(b)
above to suspend (the “Suspension Notice”) the use of
the prospectus until the requisite changes to the prospectus have been made,
then the Initial Purchasers, the Holders of the Securities and any such
Participating Broker-Dealers shall suspend use of such prospectus (and shall
keep confidential the cause of such notice for so long as such cause is not
otherwise publicly known), and the period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be extended by
the number of days from and including the date of the giving of such notice to
and including the date when the Initial Purchasers, the Holders of the
Securities and any known Participating Broker-Dealer shall have received such
amended or supplemented prospectus pursuant to this Section
3(j). Each Holder receiving a Suspension Notice hereby agrees that
(unless prohibited by applicable law or internal policy of such Holder) it will
either (i) destroy all prospectuses, other than permanent file copies, then in
such Holder’s possession which have been replaced by the Company with more
recently dated prospectuses or (ii) deliver to the Company all copies, other
than permanent file copies, then in such Holder’s possession of the prospectus
covering such Securities that was current at the time of receipt of the
Suspension Notice. During the period in which the Company is required
to maintain an effective Shelf Registration Statement pursuant to this
Agreement, the Company and the Guarantors will, prior to the three-year
expiration of that Shelf Registration Statement, file and use their commercially
reasonable efforts to cause to be declared effective (unless it becomes
effective automatically upon filing) within a period that avoids any
interruption in the ability of Holders of Securities covered by the expiring
Shelf Registration Statement to make registered dispositions, a new registration
statement relating to the Securities, which shall be deemed the “Shelf Registration Statement” for
purposes of this Agreement; provided, however, in no event
shall the Company and the Guarantors be obligated to keep any Shelf Registration
Statement effective beyond the period as required by Section 2(b) of this
Agreement as extended by the number of days provided for in the second sentence
of this Section 3(j).
(k) Not later
than the effective date of the applicable Registration Statement, the Company
and the Guarantors will provide a CUSIP number for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case may be, and
provide the applicable trustee with printed certificates for the Initial
Securities, the Exchange Securities or the Private Exchange Securities, as the
case may be, in a form eligible for deposit with The Depository Trust
Company.
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(l) The
Company and the Guarantors will comply in all material respects with all rules
and regulations of the Commission to the extent and so long as they are
applicable to the Registered Exchange Offer or the Shelf Registration and will
make generally available to its security holders (or otherwise provide in
accordance with Section 11(a) of the Securities Act) an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act, no later than
45 days after the end of a 12-month period (or 90 days, if such period is a
fiscal year) beginning with the first month of the Company’s first fiscal
quarter commencing after the effective date of the Registration Statement, which
statement shall cover such 12-month period.
(m) The
Company and the Guarantors shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended, in a timely manner and containing such
changes, if any, as shall be necessary for such qualification. In the
event that such qualification would require the appointment of a new trustee
under the Indenture, the Company and the Guarantors shall appoint a new trustee
thereunder pursuant to the applicable provisions of the Indenture.
(n) The
Company may require each Holder of Securities to be sold pursuant to the Shelf
Registration Statement to furnish to the Company such information regarding the
Holder and the distribution of the Securities as the Company may from time to
time reasonably require for inclusion in the Shelf Registration Statement, and
the Company may exclude from such registration the Securities of any Holder that
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
(o) The
Company and the Guarantors shall enter into such customary agreements
(including, if requested, an underwriting agreement in customary form) and take
all such other action, if any, as any Holder of the Transfer Restricted
Securities shall reasonably request in order to facilitate the disposition of
the Transfer Restricted Securities pursuant to any Shelf
Registration.
(p) In the
case of any Shelf Registration, the Company and the Guarantors, as applicable,
shall (i) make reasonably available for inspection by the Holders of the
Securities, any underwriter participating in any disposition pursuant to the
Shelf Registration Statement and any attorney, accountant or other agent
retained by the Holders of the Securities or any such underwriter all relevant
financial and other records, pertinent corporate documents and properties of the
Company and (ii) cause the Company’s officers, directors, employees,
accountants and auditors to supply all relevant information reasonably requested
by the Holders of the Securities or any such underwriter, attorney, accountant
or agent in connection with the Shelf Registration Statement, in each case, as
shall be reasonably necessary to enable such persons to conduct a reasonable
investigation within the meaning of Section 11 of the Securities Act; provided, however, that the
foregoing inspection and information gathering shall be coordinated on behalf of
the Initial Purchasers by UBS and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4
hereof; provided
further, however, that the
conduct of the foregoing inspection and information gathering shall be subject
to the execution by all persons party to such
11
inspection
and information gathering of a reasonable confidentiality undertaking in
customary form with respect to confidential and proprietary information of the
Company.
(q) In the
case of any Shelf Registration, the Company, if requested by any Holder of
Securities covered thereby, shall cause (i) its counsel (who may be an
employee of the Company) to deliver an opinion and updates thereof relating to
the Securities in customary form addressed to such Holders and the managing
underwriters, if any, thereof and dated, in the case of the initial opinion, the
effective date of such Shelf Registration Statement (it being agreed that the
matters to be covered by such opinion shall include, without limitation, the due
incorporation and good standing of the Company and its domestic subsidiaries;
the qualification of the Company and its subsidiaries to transact business as
foreign corporations; the due authorization, execution and delivery of the
relevant agreement of the type referred to in Section 3(o) hereof; the due
authorization, execution, authentication and issuance, and the validity and
enforceability, of the applicable Securities; the absence of material legal or
governmental proceedings involving the Company and its domestic subsidiaries;
the absence of governmental approvals required to be obtained in connection with
the Shelf Registration Statement, the offering and sale of the applicable
Securities, or any agreement of the type referred to in Section 3(o) hereof
(other than as required by any state securities or “blue sky” laws of the
federal securities laws of the United States); the compliance in all material
respects as to form of such Shelf Registration Statement and any documents
incorporated by reference therein and of the Indenture with the requirements of
the Securities Act and the Trust Indenture Act, respectively; and, (A) as of the
date of the opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the case may be,
the absence from such Shelf Registration Statement and the prospectus included
therein, as then amended or supplemented, and from any documents incorporated by
reference therein and (B) with respect to underwritten offerings, as of an
applicable time identified by such Holders or managing underwriters, the absence
from such prospectus taken together with any other documents identified by such
Holders or managing underwriters, in the case of (A) and (B), of an untrue
statement of a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading (in the case of any such documents, in the light of the circumstances
existing at the time that such documents were filed with the Commission under
the Exchange Act); (ii) its officers to execute and deliver all customary
documents and certificates and updates thereof requested by any underwriters of
the applicable Securities and (iii) its independent registered public
accounting firm and the independent registered public accounting firm with
respect to any other entity for which financial information is provided in the
Shelf Registration Statement to provide to the selling Holders of the applicable
Securities and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72 and any other applicable
pronouncements.
(r) If a
Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such
other
12
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 xxxx, or cause to be
marked, on the Initial Securities so exchanged that such Initial Securities are
being canceled in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be; in no event shall the Initial Securities be
marked as paid or otherwise satisfied.
(s) If so
requested by Holders of a majority in aggregate principal amount of Securities
covered by a Registration Statement, or by the managing underwriters, if any,
the Company and the Guarantors will use their commercially reasonable efforts to
(a) if the Initial Securities have been rated prior to the initial sale of such
Initial Securities, confirm such ratings will apply to the Securities covered by
such Registration Statement, or (b) if the Initial Securities were not
previously rated, cause the Securities covered by such Registration Statement to
be rated with the appropriate rating agencies.
(t) In the
event that any broker-dealer registered under the Exchange Act shall underwrite
any Securities or participate as a member of an underwriting syndicate or
selling group or “assist in the distribution” (within the meaning of the Conduct
Rules (the “Rules”) of
the Financial Industry Regulatory Authority, Inc. (“FINRA”)) thereof, whether as a
Holder of such Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, the Company and the
Guarantors will assist such broker-dealer in complying with the requirements of
such Rules, including, without limitation, by (i) if such Rules, including
Rule 2720, shall so require, engaging a “qualified independent underwriter”
(as defined in Rule 2720) to participate in the preparation of the
Registration Statement relating to such Securities, to exercise usual standards
of due diligence in respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten offering or is
made through a placement or sales agent, to recommend the yield of such
Securities, (ii) indemnifying any such qualified independent underwriter to the
extent of the indemnification of underwriters provided in Section 5 hereof and
(iii) providing such information to such broker-dealer as may be required in
order for such broker-dealer to comply with the requirements of the
Rules.
(u) The
Company and the Guarantors shall use their commercially reasonable efforts to
take all other steps necessary to effect the registration of the Securities
covered by a Registration Statement contemplated hereby.
(v) Each
Holder and each Participating Broker-Dealer agrees by acquisition of Initial
Securities or Exchange Securities that, upon the Company providing notice to
such Holder or Participating Broker-Dealer, as the case may be, (x) of the
happening of any event of the kind described in paragraphs (ii) through (v) of
Section 3(b) hereof, or (y) that the Board of Directors of the Company has
resolved that the Company has a bona fide business purpose
for doing so, then, upon providing such notice (which shall refer to this
Section 3(v)), the Company may delay the filing or the effectiveness of the
Exchange Offer Registration Statement or the Shelf Registration Statement (if
not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer
Registration Statement or the Shelf
13
Registration
Statement, in all cases, for a period (a “Delay Period”) expiring upon
the earlier to occur of (i) in the case of the immediately preceding clause (x),
such Holder’s or Participating Broker-Dealer’s receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3(g) hereof or until
it is advised in writing by the Company that the use of the applicable
prospectus may be resumed, and has received copies of any amendments or
supplements thereto or (ii) in the case of the immediately preceding clause (y),
the date which is the earlier of (A) the date on which such business purpose
ceases to interfere with the Company’s and the Guarantors’ obligations to file
or maintain the effectiveness of any such Registration Statement pursuant to
this Agreement or (B) 60 days after the Company notifies the Holders of such
good faith determination. There shall not be more than 60 days of Delay Periods
during any 12-month period. The period of effectiveness of the Shelf
Registration Statement provided for in Section 2(b) above and the Exchange Offer
Registration Statement provided for in Section 1 above shall each be extended by
a number of days equal to the number of days during any Delay
Period. Any Delay Period will not alter the obligations of the
Company or the Guarantors to pay Additional Interest under the circumstances set
forth in Section 6 hereof.
4. Registration
Expenses.
(a) All
expenses incident to the Company’s and the Guarantors’ performance of and
compliance with this Agreement will be borne by the Company and the Guarantors,
regardless of whether a Registration Statement is ever filed or becomes
effective, including without limitation:
(i) all
registration and filing fees and expenses;
(ii) all fees
and expenses of compliance with federal securities and state “blue sky” or
securities laws;
(iii) all
expenses of printing (including printing certificates for the Securities to be
issued in the Registered Exchange Offer and the Private Exchange and printing of
Prospectuses), messenger and delivery services and telephone;
(iv) all fees
and disbursements of counsel for the Company and the Guarantors;
(v) all
application and filing fees in connection with listing the Exchange Securities
on a national securities exchange or automated quotation system pursuant to the
requirements hereof; and
(vi) all fees
and disbursements of the independent registered public accounting firm of the
Company (including the expenses of any special audit and comfort letters
required by or incident to such performance).
14
The
Company and the Guarantors will bear their internal expenses (including, without
limitation, all salaries and expenses of their officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any person, including special experts, retained by the Company and
the Guarantors.
(b) In the
event that a Shelf Registration Statement is required by this Agreement, the
Company and the Guarantors shall bear or reimburse the Holders of the Securities
covered thereby for the reasonable and documented fees and disbursements of not
more than one firm of counsel, who shall be Cravath, Swaine & Xxxxx LLP
unless another firm shall be chosen by the Holders of a majority in principal
amount of the Initial Securities covered thereby to act as counsel for the
Holders of the Initial Securities in connection therewith.
5. Indemnification.
(a) The
Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless each Holder of the Securities, any Participating Broker-Dealer and each
person, if any, who controls such Holder or such Participating Broker-Dealer
within the meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the “Indemnified Parties”) from and against any
losses, claims, damages or liabilities, joint or several, or any actions in
respect thereof (including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the Securities) to
which each Indemnified Party may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement or prospectus
or in any amendment or supplement thereto or in any preliminary prospectus or
issuer free writing prospectus, as defined in Commission Rule 433 (“Issuer FWP”), relating to a
Shelf Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (subject to Section
5(c)) shall reimburse, as incurred, the Indemnified Parties for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action in respect thereof;
provided, however, that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to a Shelf Registration
Statement, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Holder or Participating Broker-Dealer from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus or amendment or supplement
thereto relating to such Securities was required to be delivered (including
through satisfaction of the conditions of Commission Rule 172) by such Holder or
Participating Broker-Dealer under the Securities Act in connection with such
purchase and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the time of the sale of such Securities to
such person, an amended or supplemented prospectus or, if permitted
by
15
Section
3(d), an Issuer FWP correcting such untrue statement or omission or alleged
untrue statement or omission if the Company had previously furnished copies
thereof to such Holder or Participating Broker-Dealer; provided further,
however, that
this indemnity agreement will be in addition to any liability which the Company
and the Guarantors may otherwise have to such Indemnified Party. The
Company and the Guarantors shall also indemnify underwriters in connection with
any Shelf Registration, their officers and directors and each person who
controls such underwriters within the meaning of the Securities Act or the
Exchange Act to the same extent as provided above with respect to the
indemnification of the Holders of the Securities if requested by such
Holders.
(b) Each
Holder of the Securities and each Participating Broker-Dealer, severally and not
jointly, will indemnify and hold harmless the Company, the Guarantors and each
person, if any, who controls the Company or the Guarantors, as the case may be,
within the meaning of the Securities Act or the Exchange Act from and against
any losses, claims, damages or liabilities or any actions in respect thereof, to
which the Company, the Guarantors or any such controlling person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages, liabilities or actions arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
a Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus or Issuer FWP relating to a Shelf Registration,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or omission or
alleged untrue statement or omission was made in reliance upon and in conformity
with written information pertaining to such Holder or Participating
Broker-Dealer and furnished to the Company by or on behalf of such Holder or
Participating Broker-Dealer specifically for inclusion therein; and, subject to
the limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company or the Guarantors, as the case may be, for any legal or
other expenses reasonably incurred by the Company, the Guarantors or any such
controlling person in connection with investigating or defending any loss,
claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability which such Holder may otherwise
have to the Company, the Guarantors or any of their controlling
persons.
(c) Promptly
after receipt by an indemnified party under this Section 5 of notice of the
commencement of any action or proceeding (including a governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 5, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party (i) will not relieve it from any liability under
subsection (a) or (b) above unless and to the extent it did not otherwise learn
of such action and such failure results in the forfeiture by the Indemnifying
Party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraph (a) or (b)
above. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein
16
and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense thereof. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all liability
on any claims that are the subject matter of such action, 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; provided that, if the
Company is the indemnified party, no indemnifying party shall, without the prior
consent of the Company, effect any settlement of any pending action or
threatened action. No indemnifying party shall be liable for any
settlement or compromise of, or consent to the entry of judgment with respect
to, any such action or claim effected without its consent.
(d) If the
indemnification provided for in this Section 5 is unavailable or insufficient to
hold harmless an indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to in subsection (a) or (b) above (i)
in such proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the indemnified party
on the other from the exchange of the Securities pursuant to the Registered
Exchange Offer, or (ii) if the allocation provided by the foregoing 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 indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities (or actions in
respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company and the Guarantors
on the one hand or such Holder or such other indemnified party, as the case may
be, on the other, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection
(d). Notwithstanding any other provision of this Section 5(d), the
Holders of the Securities shall not be required to contribute any amount in
excess of the amount by which the net proceeds received by such Holders from the
sale of the Securities pursuant to a Registration Statement exceeds the amount
of damages
17
which
such Holders have 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. For purposes of this
paragraph (d), each person, if any, who controls such indemnified party within
the meaning of the Securities Act or the Exchange Act shall have the same rights
to contribution as such indemnified party and each person, if any, who controls
the Company or the Guarantors within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company or the
Guarantors, as the case may be.
(e) The
agreements contained in this Section 5 shall survive the sale of the Securities
pursuant to a Registration Statement and shall remain in full force and effect,
regardless of any termination or cancellation of this Agreement or any
investigation made by or on behalf of any indemnified party.
6. Additional
Interest Under Certain Circumstances.
(a) Additional
interest (the “Additional
Interest”) with respect to the Transfer Restricted Securities shall be
assessed as follows if any of the following events occur (each such event in
clauses (i) through (iv) below being herein called a “Registration
Default”):
(i) any
Registration Statement required by this Agreement is not filed with the
Commission on or prior to the applicable Filing Deadline;
(ii) any
Registration Statement required by this Agreement is not declared effective by
the Commission on or prior to the applicable Effectiveness
Deadline;
(iii) the
Registered Exchange Offer has not been consummated on or prior to the
Consummation Deadline; or
(iv) any
Registration Statement required by this Agreement has been declared effective by
the Commission but (A) such Registration Statement thereafter ceases to be
effective during the period specified in Section 1 and Section 2(b) of this
Agreement, except, in the case of the Exchange Offer Registration Statement,
following the consummation of the Exchange Offer with respect to all Securities
tendered in connection therewith prior to the expiration of the Exchange Offer
or (B) such Registration Statement or the related prospectus ceases to be usable
in connection with resales of Transfer Restricted Securities during the periods
specified herein because either (1) any event occurs as a result of which the
related prospectus forming part of such Registration Statement would include any
untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under which
they were made not misleading, (2) it shall be necessary to amend such
Registration Statement or supplement the related prospectus to comply with the
Securities Act or the Exchange Act or the respective rules thereunder,
or
18
(3) such
Registration Statement is a Shelf Registration Statement that has expired before
a replacement Shelf Registration Statement has become effective, causing an
interruption in the ability of Holders of Securities covered by the expiring
Shelf Registration Statement to make registered dispositions during a time when
the Company remains under an obligation to keep a Shelf Registration Statement
effective pursuant to this Agreement.
Additional
Interest shall accrue on the Transfer Restricted Securities over and above the
interest set forth in the title of the Transfer Restricted Securities, from and
including the date on which any such Registration Default shall occur to but
excluding the date on which all such Registration Defaults have been cured, at a
rate of 0.25% per annum (the “Additional Interest Rate”) for
the first 90-day period immediately following the occurrence of such
Registration Default. The Additional Interest Rate shall increase by
an additional 0.25% per annum with respect to each subsequent 90-day period
until all Registration Defaults have been cured, up to a maximum Additional
Interest Rate of 1.0% per annum; provided that the
Company shall in no event be required to pay Additional Interest for more than
one Registration Default at any given time.
(b) A
Registration Default referred to in Section 6(a)(iv) hereof shall be deemed not
to have occurred and be continuing in relation to a Shelf Registration Statement
or the related prospectus if (i) such Registration Default has occurred solely
as a result of (x) the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial information with
respect to the Company where such post-effective amendment is not yet effective
and needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events, with respect to the Company that would
need to be described in such Shelf Registration Statement or the related
prospectus and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement such Shelf Registration
Statement and related prospectus to describe such events; provided, however, that in any
case if such Registration Default occurs for a continuous period in excess of 45
days, Additional Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurs until such Registration
Default is cured.
(c) Any
amounts of Additional Interest due pursuant to Section 6(a) above will be
payable in cash on the regular interest payment dates with respect to the
Transfer Restricted Securities. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest Rate by the
principal amount of the Transfer Restricted Securities and further multiplied by
a fraction, the numerator of which is the number of days such Additional
Interest Rate was applicable during such period (determined on the basis of a
360-day year comprising twelve 30-day months), and the denominator of which is
360.
(d) “Transfer Restricted
Securities” means each Security until (i) the date on which such Security
has been exchanged by a person other than a broker-dealer for a freely
transferable Exchange Security in the Registered Exchange Offer, (ii) following
the exchange by a broker-dealer in the Registered Exchange Offer of an Initial
Security for an Exchange Note, the date on which such Exchange Note is sold to a
purchaser who
19
receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement, (iv)
the date on which such Security is distributed to the public pursuant to Rule
144 under the Securities Act or (v) the earliest date that is no less than two
years after the Issue Date and on which all such Securities (except for
Securities held by an affiliate of the Company) are no longer subject to any
restrictions on transfer under the Securities Act including those pursuant to
Rule 144.
7. Rules 144 and
144A. The Company and the Guarantors shall use their
reasonable efforts to file the reports required to be filed by them under the
Securities Act and the Exchange Act in a timely manner and, if at any time
Holdings is not required to file such reports, the Company and the Guarantors
will, upon the request of any Holder of Securities that are “restricted
securities” within the meaning of Rule 144 and are not saleable pursuant to
Rule 144(d), make publicly available other information so long as necessary
to permit sales of their Securities pursuant to Rules 144 and
144A. The Company and the Guarantors covenant that they will take
such further action as any Holder of Securities may reasonably request, all to
the extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)). The Company on behalf of itself and the
Guarantors will provide a copy of this Agreement to prospective purchasers of
Initial Securities identified to the Company by the Initial Purchasers upon
request. If the Company ceases to be a reporting company under the
Exchange Act, upon the request of any Holder of Initial Securities, the Company
shall deliver to such Holder a written statement as to whether it has complied
with such requirements. Notwithstanding the foregoing, nothing in
this Section 7 shall be deemed to require the Company and the Guarantors to
register any of their securities pursuant to the Exchange Act.
8. Underwritten
Registrations. If any of the Transfer Restricted 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
administer the offering (“Managing Underwriters”) will
be selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Securities to be included in such offering, subject to
approval by the Company, which will not be unreasonably withheld or
delayed.
No person
may participate in any underwritten registration hereunder unless such person
(i) agrees to sell such person’s Transfer Restricted Securities on the
basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes
and executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
9. Miscellaneous.
(a) Remedies. The
Company and the Guarantors acknowledge and agree that any failure by the Company
and the Guarantors to comply with their obligations under
20
Sections 1
and 2 hereof may result in material irreparable injury to the Initial Purchasers
or the Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such relief
as may be required to specifically enforce the Company’s and the Guarantors’
obligations under Sections 1 and 2 hereof. The Company and the
Guarantors further agree to waive the defense in any action for specific
performance that a remedy at law would be adequate. The Initial
Purchasers and the Holders acknowledge and agree that the Additional Interest
provided by Section 6 of this Agreement shall be the exclusive monetary remedy
available to Holders for any Registration Default.
(b) No Inconsistent
Agreements. On or after the date of this Agreement, the
Company will not enter into any agreement with respect to its securities that is
inconsistent with 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 are not inconsistent
with the rights granted to the holders of the Company’s securities under any
agreement 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, except by the Company on behalf of itself
and the Guarantors and the written consent of the Holders of a majority in
principal amount of the Transfer Restricted Securities affected by such
amendment, modification, supplement, waiver or consents. Without the
consent of the Holder of each Security, however, no modification may change the
provisions relating to the payment of Additional Interest.
(d) Notices. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, first-class mail, facsimile transmission, or
air courier which guarantees overnight delivery:
(1) if
to a Holder of the Securities, at the most current address given by such Holder
to the Company.
(2) if
to the Initial Purchasers:
UBS Securities LLC
000 Xxxxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxxxxxxx
00000
Fax No.: (000)
000-0000
Attention: HY
Syndicate
21
with a
copy to:
Cravath,
Swaine & Xxxxx LLP
Worldwide
Plaza
000
Xxxxxx Xxxxxx
Xxx Xxxx,
XX 00000-0000
Fax
No.: (000) 000-0000
Attn: Xxxxxxx
X. Xxxxxx, III, Esq.
(3) if to
the Company or any of the Guarantors, at its address as follows:
Ply Gem
Industries, Inc.
0000
Xxxxxx Xxxxxxx, Xxxxx 000
Xxxx, XX
00000
Fax No.:
(000) 000-0000
Attn: Xxxx
Xxxxxxxxx
with a
copy to:
Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000-0000
Fax
No.: (000) 000-0000
Attn: Xxxx
X. Xxxxxxx, Esq.
All such
notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient’s facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(e) Third Party
Beneficiaries. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Company and the Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.
(f) Successors and
Assigns. This Agreement shall be binding upon the Company and
its successors and assigns.
(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.
22
(i) 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 LAWS.
(j) Severability. If
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. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities is required hereunder,
Securities held by the Company or its affiliates (other than subsequent Holders
of Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
23
If the
foregoing is in accordance with your understanding of our agreement, please sign
and return to the Company a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement among the several Initial
Purchasers, the Guarantors and the Company in accordance with its
terms.
|
Very
truly yours,
|
|
|
PLY
GEM INDUSTRIES, INC.
|
|
|
By
|
|
|
_/s/
Xxxxx X. Xxx _________________
|
|
|
Name:
Xxxxx X. Xxx
|
|
|
Title:
Vice President
|
|
PLY
GEM HOLDINGS, INC.
|
|
|
By
|
|
|
_/s/
Xxxxx X. Xxx _________________
|
|
|
Name:
Xxxxx X. Xxx
|
|
|
Title:
Vice President
|
|
|
ALCOA
HOME EXTERIORS, INC.
|
|
|
ALENCO
BUILDING PRODUCTS
|
|
|
MANAGEMENT,
L.L.C.
|
|
|
ALENCO
EXTRUSION GA, L.L.C.
|
|
|
ALENCO
EXTRUSION
|
|
|
MANAGEMENT,
L.L.C.
|
|
|
ALENCO
HOLDING CORPORATION
|
|
|
ALENCO
INTERESTS, L.L.C.
|
|
|
ALENCO
TRANS, INC.
|
|
|
ALENCO
WINDOW GA, L.L.C.
|
|
|
ALUMINUM
SCRAP RECYCLE, L.L.C.
|
|
|
AWC
ARIZONA, INC.
|
|
|
AWC
HOLDING COMPANY
|
|
|
GLAZING
INDUSTRIES
|
|
|
MANAGEMENT,
L.L.C.
|
|
|
GREAT
LAKES WINDOW, INC.
|
|
|
KROY
BUILDING PRODUCTS, INC.
|
|
|
MW
MANUFACTURERES INC.
|
|
|
MWM
HOLDING, INC.
|
|
|
NAPCO,
INC.
|
|
|
NEW
ALENCO EXTRUSION, LTD.
|
|
|
NEW
ALENCO WINDOW, LTD.
|
|
|
NEW
GLAZING INDUSTRIES, LTD.
|
|
|
PLY
GEM PACIFIC WINDOWS
|
|
|
CORPORATION
|
|
|
VARIFORM,
INC.
|
|
|
By
|
|
|
_/s/
Xxxxx X. Xxx _________________
|
|
|
Name:
Xxxxx X. Xxx
|
|
|
Title:
Vice President
|
The
foregoing Registration Rights
Agreement
is hereby confirmed and
accepted
as of the date first written above.
By: UBS
SECURITIES LLC
By: ___/s/ Xxxxxxx Xxxxxx
____________________
Name:
Xxxxxxx Xxxxxx
Title:
Executive Director
By: __/s/ Rahul Kotwaz
_____________________
Name:
Rahul Kotwaz
Title:
Director
as
Representative of the several Initial Purchasers.
ANNEX
A
Each
broker-dealer that receives Exchange Securities for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of those Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an “underwriter” within the
meaning of the Securities Act. This prospectus, as it may be amended
or supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where those Initial Securities were acquired by that broker-dealer as a result
of market-making activities or other trading activities. The Company
has agreed that, for a period of 180 days after the Expiration Date (as defined
herein), it will make this prospectus available to any broker-dealer for use in
connection with any such resale. See “Plan of
Distribution.”
ANNEX
B
Each
broker-dealer that receives Exchange Securities for its own account in exchange
for Initial Securities, where such Initial Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See “Plan of
Distribution.”
ANNEX
C
PLAN OF
DISTRIBUTION
Each
broker-dealer that receives Exchange Securities for its own account pursuant to
the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The
Company has agreed that, for a period of 180 days after the Expiration Date, it
will make this prospectus, as amended or supplemented, available to any
broker-dealer for use in connection with any such resale. In
addition,
until ,
201 , all dealers effecting transactions in the Exchange Securities
may be required to deliver a prospectus.
The
Company will not receive any proceeds from any sale of Exchange Securities by
broker-dealers. The Exchange Securities received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any
such Exchange Securities. Any broker-dealer that resells Exchange
Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such
Exchange Securities may be deemed to be an “underwriter” within the meaning of
the Securities Act and any profit on any such resale of Exchange Securities and
any commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
“underwriter” within the meaning of the Securities Act.
For a
period of 180 days after the Expiration Date, the Company will promptly send
additional copies of this Prospectus and any amendment or supplement to this
Prospectus to any broker-dealer that requests such documents in the Letter of
Transmittal. The Company has agreed to pay all expenses incident to
the Exchange Offer (including the expenses of one counsel for the Holders of the
Securities) other than commissions or concessions of any brokers or dealers and
will indemnify the Holders of the Securities (including any broker-dealers)
against certain liabilities, including liabilities under the Securities
Act.
ANNEX
D
[ ] CHECK
HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: __________________________________
Address: __________________________________
If the
undersigned is not a broker-dealer, the undersigned represents that it is not
engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Initial Securities that
were acquired as a result of market-making activities or other trading
activities, it acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an “underwriter” within the meaning of the Securities Act.
