Exhibit 4.2
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated August 28, 2001 (the "Agreement")
is entered into by and among Armkel, LLC, a Delaware limited liability company
(the "Company"), Armkel Finance, Inc., a Delaware corporation ("Armkel Finance"
and together with the Company, the "Issuers"), and X.X. Xxxxxx Securities Inc.
and Deutsche Banc Alex. Xxxxx Inc. (the "Initial Purchasers").
The Issuers and the Initial Purchasers are parties to the Purchase
Agreement dated August 14, 2001 (the "Purchase Agreement"), which provides for
the sale by the Issuers to the Initial Purchasers of $225,000,000 aggregate
principal amount of the Issuers' 9-1/2% Senior Subordinated Notes due 2009 (the
"Securities") which will be fully and unconditionally guaranteed on an unsecured
senior subordinated basis by each of the Subsidiary Guarantors (as defined
below). As an inducement to the Initial Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide to the Initial Purchasers and
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 under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
-----------
As used in this Agreement, the following terms shall have the following
meanings:
"Acquisition" shall mean the acquisition by the Company of the consumer
-----------
products business of Xxxxxx Xxxxxxx, Inc. (including the entities that currently
hold or will hold such business) pursuant to the Asset Purchase Agreement dated
May 7, 2001, between Xxxxxx Xxxxxxx, Inc. and the Company.
"Business Day" shall mean any day that is not a Saturday, Sunday or other
------------
day on which commercial banks in New York City are authorized or required by law
to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
------------
Agreement.
"Company" shall have the meaning set forth in the preamble and shall also
-------
include the Company's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended
------------
from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
--------------
hereof.
2
"Exchange Offer" shall mean the exchange offer by the Issuers and the
--------------
Subsidiary Guarantors of Exchange Securities for Registrable 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 an exchange offer
-------------------------------------
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
"Exchange Securities" shall mean senior subordinated notes issued by the
-------------------
Issuers and guaranteed by the Subsidiary Guarantors under the Indenture
containing terms substantially similar to the Securities (except that the
Exchange Securities will not be subject to restrictions on transfer or to any
increase in annual interest rate for failure to comply with this Agreement) and
to be offered to Holders of Securities in exchange for Securities pursuant to
the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own any
-------
Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become owners of Registrable Securities under the
Indenture; provided that for purposes of Sections 4 and 5 of this Agreement, the
--------
term "Holders" shall include Participating Broker-Dealers.
"Initial Purchaser" shall have the meaning set forth in the preamble.
-----------------
"Indenture" shall mean the Indenture relating to the Securities dated as of
---------
August 28, 2001 among the Issuers and The Bank of New York, as Trustee, and as
the same may be amended from time to time in accordance with the terms thereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
----------------
principal amount of outstanding Registrable Securities; provided that whenever
--------
the consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities owned by the Issuers or
any subsidiary of the Company shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage or
amount.
"Participating Broker-Dealers" shall have the meaning set forth in Section
----------------------------
4(a) hereof.
"Person" shall mean an individual, partnership, limited liability company,
------
corporation, trust or unincorporated organization, or a government or agency or
political subdivision thereof.
3
"Purchase Agreement" shall have the meaning set forth in the preamble.
------------------
"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 supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Registrable Securities" shall mean the Securities; provided that the
---------------------- --------
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Issuers and the Subsidiary Guarantors with
this Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. registration and filing fees,
(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 Exchange Securities or Registrable Securities), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, 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) all fees and disbursements
relating to the qualification of the Indenture under applicable securities laws,
(vi) the fees and disbursements of the Trustee and its counsel, (vii) the fees
and disbursements of counsel for the Issuers and the Subsidiary Guarantors and,
in the case of a Shelf Registration Statement, the fees and disbursements of one
counsel for the Holders (which counsel shall be selected by the Majority Holders
and which counsel may also be counsel for the Initial Purchasers) and (viii) the
fees and disbursements of the independent public accountants of the Issuers and
the Subsidiary Guarantors, including the expenses of any special audits or
"comfort" letters required by or incident to such performance and compliance,
but excluding any and all fees and expenses of counsel to the underwriters
(other than fees and expenses set forth in clause (ii) above) or the Holders 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 any registration statement of the
----------------------
Issuers and the Subsidiary Guarantors that covers any of the Exchange Securities
or Registrable Securities pursuant to the provisions of this Agreement
4
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 any document incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
---
"Securities Act" shall mean the Securities Act of 1933, as amended from
--------------
time to time.
"Shelf Registration" shall mean a registration effected pursuant to Section
------------------
2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
----------------------------
of the Issuers and the Subsidiary Guarantors that covers all the Registrable
Securities (but no other securities unless approved by the Majority Holders
whose Registrable Securities are to be covered by such Shelf Registration
Statement) on an appropriate form under 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 any document incorporated by reference therein.
"Subsidiary Guarantors" shall have the meaning given in the Indenture.
---------------------
"Trust Indenture Act" shall have the meaning set forth in Section 3(I)
-------------------
hereof.
"Trustee" shall mean the trustee with respect to the Securities under the
-------
Indenture.
"Underwriter" shall have the meaning set forth in Section 3 hereof.
-----------
"Underwritten Registration" or "Underwritten Offering" shall mean a
------------------------- ---------------------
registration in which Registrable Securities are sold to an Underwriter for
reoffering to the public.
2. Registration Under the Securities Act.
-------------------------------------
(a) To the extent not prohibited by any applicable law or applicable
interpretations of the Staff of the SEC, the Issuers and the Subsidiary
Guarantors shall use their reasonable best efforts to (i) cause to be filed an
Exchange Offer Registration Statement covering an offer to the Holders to
exchange all the Registrable Securities for Exchange Securities and (ii) have
such Registration Statement remain effective until the closing of the Exchange
Offer. The Issuers and the Subsidiary Guarantors shall commence the Exchange
Offer as promptly as is reasonably practical after the Exchange Offer
Registration Statement is declared effective by the SEC and use their reasonable
best efforts to complete
5
the Exchange Offer not later than 60 days after such effective date. The Company
shall commence the Exchange Offer by mailing the related exchange offer
Prospectus, an appropriate letter of transmittal and accompanying documents to
each Holder stating, in addition to such other disclosures as are required by
applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement and that
all Registrable Securities validly tendered and not validly withdrawn will
be accepted for exchange subject to the conditions of the Exchange Offer;
(ii) the dates of acceptance for exchange (which shall be a period of at least
20 Business Days from the date such notice is mailed) (the "Exchange
--------
Dates");
-----
(iii) that any Registrable Security not tendered will remain outstanding and
continue to accrue interest but will not retain any rights under this
Agreement;
(iv) that Holders electing to have a Registrable Security exchanged pursuant to
the Exchange Offer will be required to surrender such Registrable
Security, together with the enclosed letters of transmittal, to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) and in the manner specified in the notice, prior to the
close of business on the last Exchange Date; and
(v) that Holders will be entitled to withdraw their election, not later than
the close of business on the last Exchange Date, by sending to the
institution and at the address (located in the Borough of Manhattan, The
City of New York) specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the
principal amount of Registrable Securities delivered for exchange and a
statement that such Holder is withdrawing its election to have such
Securities exchanged.
Each Holder that participates in the Exchange Offer will be required, as a
condition to its participation in the Exchange Offer, to represent to the
Issuers and the Subsidiary Guarantors in writing (which may be contained in the
applicable letter of transmittal) that: (i) any Exchange Securities to be
received by it will be acquired in the ordinary course of its business, (ii) at
the time of the commencement of the Exchange Offer it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) it is not an "affiliate," as defined in
Rule 405 promulgated under the Securities Act, of either Issuer or of any
Subsidiary Guarantor, (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 Exchange
Securities, and (v) if such Holder is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Registrable Securities that were
acquired as a result of market-
6
making or other trading activities, then such Holder will deliver a prospectus
in connection with any resale of such Exchange Securities.
As soon as reasonably practicable after the last Exchange Date, the Issuers
and the Subsidiary Guarantors shall:
(i) accept for exchange Registrable 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
Registrable Securities or portions thereof so accepted for exchange by the
Issuers and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, Exchange Securities equal in principal amount to
the principal amount of the Registrable Securities as accepted for
exchange.
The Issuers and the Subsidiary Guarantors 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 and regulations in connection with the Exchange Offer. The
Exchange Offer shall not be subject to any conditions, other than (i) that the
Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC, (ii) no action or proceeding shall have been instituted
or threatened in any court or by any governmental agency that might materially
impair the ability of the Issuers or any Subsidiary Guarantor to proceed with
the Exchange Offer, (iii) all governmental approvals shall have been obtained,
which approvals the Issuers deem necessary for the consummation of the Exchange
Offer and (iv) there has not been proposed, adopted or enacted any law, statute,
rule or regulation that, in the reasonable judgment of the Issuers, would
materially impair the ability of the Issuers to consummate the Exchange Offer.
(b) In the event that (i) the Issuers determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
completed as soon as practicable after the last Exchange Date because it would
violate any applicable law or applicable interpretations of the Staff of the
SEC, (ii) the Exchange Offer is not for any other reason completed on or prior
to the date that is 210 days after the closing date of the Acquisition (other
than the failure of the Holders to tender Securities therein) or (iii) the
Exchange Offer has been completed and in the opinion of counsel for the Initial
Purchasers a Registration Statement must be filed and a Prospectus must be
delivered by the Initial Purchasers in connection with any offering or sale of
Registrable Securities, the Issuers and the Subsidiary Guarantors shall use
their reasonable best efforts to cause to be filed as soon as practicable after
such determination, date or notice of such opinion of counsel is given to the
Company, as the case may be, a Shelf Registration Statement providing for the
sale of all the Registrable Securities by the Holders thereof and to have such
Shelf Registration Statement declared effective by the SEC.
7
In the event that the Issuers and the Subsidiary Guarantors are required to
file a Shelf Registration Statement solely as a result of the matters referred
to in clause (iii) of the preceding sentence, the Issuers and the Subsidiary
Guarantors shall use their reasonable best efforts to file and have declared
effective by the SEC both an Exchange Offer Registration Statement pursuant to
Section 2(a) with respect to all Registrable Securities and a Shelf Registration
Statement (which may be a combined Registration Statement with the Exchange
Offer Registration Statement) with respect to offers and sales of Registrable
Securities held by the Initial Purchasers after completion of the Exchange
Offer. The Issuers and the Subsidiary Guarantors agree to use their reasonable
best efforts to keep the Shelf Registration Statement continuously effective
until the expiration of the period referred to in Rule 144(k) under the
Securities Act with respect to the Registrable Securities or such shorter period
that will terminate when all the Registrable Securities covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement. The Issuers and the Subsidiary Guarantors further agree to supplement
or amend the Shelf Registration Statement and the related Prospectus if required
by the rules, regulations or instructions applicable to the registration form
used by the Issuers for such Shelf Registration Statement or by the Securities
Act or by any other rules and regulations thereunder for shelf registration or
if reasonably requested by a Holder of Registrable Securities with respect to
information relating to such Holder, and to use their reasonable best efforts to
cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as reasonably practicable. The
Company agrees to furnish to the Holders of Registrable Securities included in
such Shelf Registration Statement copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) The Issuers and the Subsidiary Guarantors shall pay all Registration
Expenses in connection with the registration pursuant to Section 2(a) and
Section 2(b) hereof. Each Holder shall pay all underwriting discounts and
commissions, transfer taxes and the fees and expenses of its advisors other than
counsel fees as expressly agreed to be paid by the Issuers and the Subsidiary
Guarantors hereunder, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Shelf Registration Statement.
(d) 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 that if, after it has been declared effective, the offering of
--------
Registrable Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the SEC or
any court or other governmental or regulatory agency or body, such Registration
Statement will be deemed not to have become effective during the period of such
interference until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
8
As provided in the Indenture, in the event that (i) the Exchange Offer
Registration Statement is not filed with the SEC on or prior to 90 days after
the closing date of the Acquisition, (ii) the Exchange Offer Registration
Statement or the Shelf Registration Statement, if required hereby, is not
declared effective on or prior to the date that is 180 days after the closing
date of the Acquisition or 180 days after delivery of the notice and opinion of
counsel pursuant to Section 2(b)(iii) above or (iii) if the Exchange Offer is
not completed on or prior to the date that is 210 days after the closing date of
the Acquisition (other than due to the failure of Holders to tender Securities
therein), the interest rate on the Registrable Securities will be increased by
1.00% per annum until the Exchange Offer is completed or the Shelf Registration
Statement, if required hereby, is declared effective by the SEC or the
Securities become freely tradable under the Securities Act. In no event will
additional interest exceed 1.00% at any time. For the purposes of this
paragraph, the term "Registrable Securities" shall not include any Securities
that could have been exchanged in the Exchange Offer for freely transferable
Securities.
(e) Without limiting the remedies available to the Initial Purchasers and
the Holders, the Issuers and the Subsidiary Guarantors acknowledge that any
failure by the Issuers or the Subsidiary Guarantors to comply with their
obligations under Section 2(a) and Section 2(b) 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 Issuers' and the Subsidiary Guarantors' obligations
under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures.
-----------------------
In connection with their obligations pursuant to Section 2(a) and Section
2(b) hereof, the Issuers and the Subsidiary Guarantors, except to the extent
that such obligation is specifically limited to a party herein, shall as soon as
reasonably practicable:
(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (x) shall be selected by
the Issuers and the Subsidiary Guarantors, (y) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities by the
selling Holders thereof and (z) 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 for the applicable period in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under applicable
law to keep such Registration Statement effective for the applicable
9
period in accordance with Section 2 hereof and cause each Prospectus to be
supplemented by any required prospectus supplement and, as so supplemented, to
be filed pursuant to Rule 424 under the Securities Act; and keep each Prospectus
current during the period described in Section 4(3) of and Rule 174 under the
Securities Act that is applicable to transactions by brokers or dealers with
respect to the Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, either the Issuers or any
Subsidiary Guarantor shall furnish to each Holder of Registrable Securities
included in the Shelf Registration Statement, to counsel for the Initial
Purchasers, to the one counsel representing the Holders 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 of the Company, in order to facilitate the
sale or other disposition of the Registrable Securities thereunder; and, subject
to Section 3(p) herein, the Issuers and the Subsidiary Guarantors consent to the
use of such Prospectus and any amendment or supplement thereto in accordance
with applicable law by each of the selling Holders of Registrable Securities and
any such Underwriters in connection with the offering and sale of the
Registrable Securities covered by and in the manner described in such Prospectus
or any amendment or supplement thereto in accordance with applicable law;
(d) use their reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or blue sky laws of
such jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement shall reasonably request to the Company in writing by the
time the applicable Registration Statement is declared effective by the SEC;
cooperate with the Holders in connection with any filings required to be made
with the National Association of Securities Dealers, Inc.; and do any and all
other acts and things that may be reasonably necessary or advisable to enable
each Holder to complete the disposition in each such jurisdiction of the
Registrable Securities owned by such Holder; provided that neither Issuer nor
--------
any Subsidiary Guarantor shall be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process or (iii) subject itself to taxation in any
such jurisdiction if it is not so subject;
(e) in the case of a Shelf Registration, either the Issuers or any
Subsidiary Guarantor shall notify each Holder of Registrable Securities, counsel
for such Holders and counsel for the Initial Purchasers promptly and, if the
Company is requested by any such Holder or counsel, confirm such advice in
writing (i) when a Registration Statement has become effective and when any
post-effective amendment thereto has been filed and becomes effective, (ii) of
any request by the SEC or any state securities authority for amendments and
supplements to a Registration Statement and Prospectus or for additional
material information after the Registration Statement has become effective,
(iii) of
10
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) notify each Holder of Registrable
Securities that is party to any agreement described in this clause (iv) if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Issuers or any Subsidiary Guarantor contained in any
underwriting agreement, securities sales agreement or other similar agreement,
if any, relating to an offering of such Registrable Securities cease to be true
and correct in all material respects, (v) if the Issuers or any Subsidiary
Guarantor receives any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation of any proceeding for such purpose, (vi) of the happening of any
event during the period a Shelf Registration Statement is effective that makes
any statement made in such Registration Statement or the related Prospectus
untrue in any material respect or that requires the making of any changes in
such Registration Statement or Prospectus in order to make the statements
therein not misleading and (vii) of any determination by the Issuers that a
post-effective amendment to a Registration Statement would be appropriate;
(f) make reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment and provide prompt notice to each Holder of the withdrawal of
any such order;
(g) in the case of a Shelf Registration, either the Issuers or any
Subsidiary Guarantor shall furnish to each Holder of Registrable Securities
included in the Shelf Registration Statement, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto (without any document incorporated therein by reference or exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the selling Holders
of Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends and enable such Registrable Securities to be in such
denominations and registered in such names (consistent with the provisions of
the Indenture) as the selling Holders may reasonably request;
(i) in the case of a Shelf Registration, upon the occurrence of any event
contemplated by Section 3(e)(vi) hereof, use their reasonable best efforts to
prepare and file with the SEC 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 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 the Company shall notify the
Holders
11
of Registrable Securities to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and such Holders hereby agree
to suspend use of the Prospectus until the Issuers and the Subsidiary Guarantors
have amended or supplemented the Prospectus to correct such misstatement or
omission;
(j) a reasonable time prior to the filing of any Registration Statement,
any Prospectus, any amendment to a Registration Statement or amendment or
supplement to a Prospectus or of any document that is to be incorporated by
reference into a Registration Statement or a Prospectus after initial filing of
a Registration Statement, provide copies of such document to the Initial
Purchasers and their counsel (and, in the case of a Shelf Registration
Statement, to the Holders of Registrable Securities and their counsel, if known)
and make such of the representatives of the Issuers and the Subsidiary
Guarantors as shall be reasonably requested by the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the Holders of
Registrable Securities or their counsel) available for discussion of such
document; and the Issuers and the Subsidiary Guarantors shall not at any time
file or make any amendment to the Registration Statement, any Prospectus or any
amendment of or supplement to a Registration Statement or a Prospectus or any
document that is to be incorporated by reference into a Registration Statement
or a Prospectus, of which the Initial Purchasers and their counsel (and, in the
case of a Shelf Registration Statement, the Holders of Registrable Securities
and their counsel) shall not have previously been advised and furnished a copy
or to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Majority Holders or their counsel) shall reasonably
object on a timely basis;
(k) obtain a CUSIP number for all Exchange Securities or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement;
(l) cause the Indenture to be qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), in connection with the
-------------------
registration of the Exchange Securities 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 Trust Indenture Act; and execute, and use their 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, make available for inspection by a
representative of the Holders of the Registrable Securities included in the
Shelf Registration Statement, any Underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and attorneys and accountants
designated by the Holders (an "Inspector"), at reasonable business hours and in
a reasonable manner, all financial and other records, pertinent documents and
12
properties of the Issuers and the Subsidiary Guarantors, and cause the
respective officers, directors and employees of the Issuers and the Subsidiary
Guarantors to supply all information reasonably requested by any such
representative, Underwriter, attorney or accountant in connection with a Shelf
Registration Statement; provided that each Inspector shall take such actions as
--------
are reasonably necessary to protect the confidentiality of such information (if
practicable) to the extent such action is otherwise not inconsistent with, an
impairment of or in derogation of the rights and interests of the Holder or any
Inspector). Inspection and information gathering will be coordinated by one
counsel selected by the Majority Holders;
(n) in the case of a Shelf Registration, use their reasonable best efforts
to cause all Registrable Securities to be listed on any securities exchange or
any automated quotation system on which similar securities issued or guaranteed
by the Issuers or any Subsidiary Guarantor are then listed if requested by the
Majority Holders, to the extent such Registrable Securities satisfy applicable
listing requirements;
(o) if reasonably requested by any Holder of Registrable Securities covered
by a Registration Statement and if reasonably necessary in the opinion of the
Issuers, promptly incorporate in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder reasonably
requests to be included therein and make all required filings of such Prospectus
supplement or such post-effective amendment promptly after the Issuers have
received notification of the matters to be incorporated in such filing; and
(p) in the case of a Shelf Registration, enter into such customary
agreements and take all such other actions in connection therewith (including
those requested by the Holders of a majority of the Registrable Securities being
sold) in order to expedite or facilitate the disposition of such Registrable
Securities including, but not limited to, an Underwritten Offering and in such
connection, (i) to the extent possible, make such representations and warranties
to the Holders and any Underwriters of such Registrable Securities with respect
to the business of the Issuers and its subsidiaries, the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested, (ii) obtain opinions of counsel to the Issuers and the
Subsidiary Guarantors (which counsel and opinions, in form, scope and substance,
shall be reasonably satisfactory to the Holders and such Underwriters and their
respective counsel) addressed to each selling Holder and Underwriter of
Registrable Securities, covering the matters customarily covered in opinions
requested in underwritten offerings, (iii) obtain "comfort" letters from the
independent certified public accountants of the Issuers and the Subsidiary
Guarantors (and, if necessary, any other certified public accountant of any
subsidiary of the Issuers or any Subsidiary Guarantor, or of any business
acquired by the Issuers or any Subsidiary Guarantor for which financial
13
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities, such letters to be in customary form and covering
matters of the type customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates as may
be reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are customarily
delivered in underwritten offerings, to evidence the continued validity of the
representations and warranties of the Issuers and the Subsidiary Guarantors made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in an underwriting agreement.
In the case of a Shelf Registration Statement, the Issuers may require each
Holder of Registrable Securities to furnish to the Issuers such information
regarding such Holder and the proposed distribution by such Holder of such
Registrable Securities as any Issuer or the Subsidiary Guarantors may from time
to time reasonably request. The Issuers may exclude from such registration the
Registrable Securities of any Holder if such Holder fails to furnish such
information within a reasonable time after receiving such request. Each Holder
as to which any Shelf Registration is being effected agrees to furnish promptly
to the Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such seller not materially
misleading.
In the case of a Shelf Registration Statement, each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Issuers and the
Subsidiary Guarantors of the happening of any event of the kind described in
Sections 3(e)(iii) and 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 and, if so directed by the Company, such
Holder will deliver to the Company all copies in its possession, other than
permanent file copies then in such Holder's possession, of the Prospectus
covering such Registrable Securities that is current at the time of receipt of
such notice.
If the Company shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Company shall
extend the period during which the Registration Statement shall be maintained
effective pursuant to this Agreement by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the Holders shall have received copies of the supplemented or amended
Prospectus necessary to resume such dispositions. The Issuers and the Subsidiary
Guarantors may give any such notice during any 365-day period and any one
suspension shall not exceed 30 days but in the aggregate the suspensions shall
not exceed 60 days during any 365-day period.
14
Notwithstanding any other provisions hereof the Company may issue a notice
that the Shelf Registration Statement is unusable pending a material development
and may issue any notice suspending use of the Shelf Registration Statement
required under applicable securities laws to be issued and, in the event that
the aggregate number of days in any consecutive twelve-month period for which
all such notices are issued and effective exceeds 60 days in the aggregate, then
the interest rate on the Securities will be increased by 1.00% per annum from
the 61st day to the date the registration statement is again usable. Upon the
Company declaring that the Shelf Registration Statement is useable after the
period of time described in the preceding sentence, accrual of additional
interest shall cease; provided, however, that if after any such cessation of the
-------- -------
accrual of additional interest, the Shelf Registration Statement again ceases to
be usable as a result of a Company notice beyond the 60-day period described in
this paragraph, additional interest will again accrue pursuant to the foregoing
provisions provided, further that in no event shall the interest rate on the
-------- -------
Securities be increased by more than 1.00% per annum.
The Holders of Registrable Securities covered by a Shelf Registration
Statement who desire to do so may sell such Registrable Securities in an
Underwritten Offering. In any such Underwritten Offering, the investment banker
or investment bankers and manager or managers (the "Underwriters") that will
administer the offering will be selected by the Majority Holders of the
Registrable Securities included in such offering, which underwriters shall be
reasonably acceptable to the Company.
Notwithstanding the other provisions of this Agreement, neither the
Company, Armkel Finance nor any Subsidiary Guarantor will have any obligation or
liability under this Agreement unless and until the Acquisition is consummated.
4. Participation of Broker-Dealers in Exchange Offer.
-------------------------------------------------
(a) The Staff of the SEC has taken the position that any broker-dealer
that receives Exchange Securities for its own account in the Exchange Offer in
exchange for Securities that were acquired by such broker-dealer as a result of
market-making or other trading activities (a "Participating Broker-Dealer") may
be deemed to be an "underwriter" within the meaning of the Securities Act and
must deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such Exchange Securities.
The Issuers and the Subsidiary Guarantors understand that it is the Staff's
position that if the Prospectus contained in the Exchange Offer Registration
Statement includes a plan of distribution containing a statement to the above
effect and the means by which Participating Broker-Dealers may resell the
Exchange Securities, without naming the Participating Broker-Dealers or
specifying the amount of Exchange Securities owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their prospectus
delivery obligation under the Securities Act in connection with resales of
15
Exchange Securities for their own accounts, so long as the Prospectus otherwise
meets the requirements of the Securities Act.
(b) In light of the above, notwithstanding the other provisions of this
Agreement, the Issuers and the Subsidiary Guarantors agree that the provisions
of this Agreement as they relate to a Shelf Registration shall also apply to an
Exchange Offer Registration to the extent, and with such reasonable
modifications thereto as may be, reasonably requested by the Initial Purchasers
or by one or more Participating Broker-Dealers, in each case as provided in
clause (ii) below, in order to expedite or facilitate the disposition of any
Exchange Securities by Participating Broker-Dealers consistent with the
positions of the Staff recited in Section 4(a) above; provided that:
--------
(i) the Issuers and the Subsidiary Guarantors shall not be required to amend or
supplement the Prospectus contained in the Exchange Offer Registration
Statement, as would otherwise be contemplated by Section 3(i), for a period
exceeding 180 days after the last Exchange Date (as such period may be
extended pursuant to the penultimate paragraph of Section 3 of this
Agreement) and Participating Broker-Dealers shall not be authorized by the
Issuers and the Subsidiary Guarantors to deliver and shall not deliver such
Prospectus after such period in connection with the resales contemplated by
this Section 4; and
(ii) the application of the Shelf Registration procedures set forth in Section 3
of this Agreement to an Exchange Offer Registration, to the extent not
required by the positions of the Staff of the SEC or the Securities Act and
the rules and regulations thereunder, will be in conformity with the
reasonable request to the Issuers by the Initial Purchasers or with the
reasonable request in writing to the Issuers by one or more broker-dealers
who certify to the Initial Purchasers and the Issuers in writing that they
anticipate that they will be Participating Broker-Dealers; and provided,
--------
further, that in connection with such application of the Shelf Registration
-------
procedures set forth in Section 3 to an Exchange Offer Registration, the
Issuers and the Subsidiary Guarantors shall be obligated (x) to deal only
with one entity representing the Participating Broker-Dealers, which shall
be X.X. Xxxxxx Securities Inc. unless it elects not to act as such
representative, (y) to pay the fees and expenses of only one counsel
representing the Participating Broker-Dealers, which shall be counsel to
the Initial Purchasers unless such counsel elects not to so act and (z) to
cause to be delivered only one, if any, "comfort" letter with respect to
the Prospectus in the form existing on the last Exchange Date and with
respect to each subsequent amendment or supplement, if any, effected during
the period specified in clause (i) above.
(c) The Initial Purchasers shall have no liability to the Issuers, any
Subsidiary Guarantor or any Holder with respect to any request that it may make
pursuant to Section 4(b) above.
16
5. Indemnification and Contribution.
--------------------------------
(a) The Issuers and each Subsidiary Guarantor, jointly and severally,
agree to indemnify and hold harmless the Initial Purchasers and each Holder,
their respective affiliates and each Person, if any, who controls the Initial
Purchasers or any Holder within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages and liabilities (including, without limitation, reasonable legal fees
and other expenses actually incurred in connection with any suit, action or
proceeding or any claim asserted), joint or several, caused by any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or any Prospectus, or caused by any omission or alleged
omission to state therein 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, except insofar as such
losses, claims, damages or liabilities are caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to the Initial Purchasers or any Holder
furnished to the Issuers in writing through X.X. Xxxxxx Securities Inc. or any
selling Holder expressly for use therein. In connection with any Underwritten
Offering permitted by Section 3, the Issuers and the Subsidiary Guarantors will
also indemnify the Holders, if any, selling brokers, dealers and similar
securities industry professionals participating in the distribution, their
respective affiliates and each Person who controls such Persons (within the
meaning of the Securities Act and the Exchange Act) to the same extent as
provided above with respect to the indemnification of the Holders, if requested
in connection with any Registration Statement.
(b) Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Issuers, the Subsidiary Guarantors, the Initial Purchasers and the
other selling Holders, their respective affiliates, the directors of the Issuers
and the Subsidiary Guarantors, each officer of the Issuers and the Subsidiary
Guarantors who signed the Registration Statement and each Person, if any, who
controls the Issuers, the Subsidiary Guarantors, the Initial Purchasers and any
other selling Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or
liabilities caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to such Holder furnished to the Issuers in writing by such
Holder expressly for use in any Registration Statement and any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
--------
17
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
-------- -------
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person to represent the Indemnified
Person and any others entitled to indemnification pursuant to this Section 5
that the Indemnifying Person may designate in such proceeding and shall pay the
reasonable fees and expenses actually incurred by such counsel related to such
proceeding. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Person unless (i) the Indemnifying Person and
the Indemnified Person shall have mutually agreed to the contrary; (ii) the
Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person
shall have reasonably concluded that there may be legal defenses available to it
that are different from or in addition to those available to the Indemnifying
Person; or (iv) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It is
understood and agreed that the Indemnifying Person shall not, in connection with
any proceeding or related proceeding in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such fees and expenses shall
be reimbursed as they are incurred. Any such separate firm (x) for the Initial
Purchasers, their affiliates and any control Persons of the Initial Purchasers
shall be designated in writing by X.X. Xxxxxx Securities Inc., (y) for any
Holder, its affiliates and any control Persons of such Holder shall be
designated in writing by the Majority Holders and (z) in all other cases shall
be designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, which consent will not be unreasonably withheld or delayed, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an Indemnified Person shall have
requested that an Indemnifying Person reimburse the Indemnified Person for fees
and expenses of counsel as contemplated by this paragraph, the Indemnifying
Person shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by the Indemnifying Person of such request and (ii) the Indemnifying
Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. Notwithstanding the immediately
preceding sentence, if at any time an Indemnified Person shall have requested an
Indemnifying Person to reimburse
18
the Indemnified Person for fees and expenses of counsel, an Indemnifying Person
shall not be liable for any settlement effected without its written consent if
such Indemnifying Person (i) reimburses such Indemnified Person in accordance
with such request to the extent that it considers such request to be reasonable
and (ii) provides written notice to the Indemnified Person substantiating the
unpaid balance as unreasonable, in each case prior to the date of such
settlement. No Indemnifying Person shall, without the written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnification could have been sought hereunder by such Indemnified
Person, unless such settlement (i) includes an unconditional release of such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding and (ii) does not include any statement as to or any admission
of fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Subsidiary Guarantors from the offering of the Securities, on
the one hand, and by the Holders from receiving Securities or Exchange
Securities registered under the Securities Act, on the other hand, 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) but also the relative fault of the Issuers and the
Subsidiary Guarantors on the one hand and the Holders on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative fault of the Issuers and the Subsidiary Guarantors on the one hand and
the Holders on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers and the Subsidiary Guarantors or by the Holders and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) The Issuers, the Subsidiary Guarantors and the Holders agree that it
would not be just and equitable if contribution pursuant to this Section 5 were
determined by pro rata allocation (even if the Holders were treated as one
--- ----
entity for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses incurred by such Indemnified Person in connection with
investigating or
19
defending any such action or claim. Notwithstanding the provisions of this
Section 5, in no event shall a Holder be required to contribute any amount in
excess of the amount by which the total price at which the Securities or
Exchange Securities sold by such Holder exceeds the amount of any damages that
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section 5
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers, any Holder or any Person controlling the Initial
Purchasers or any Holder, or by or on behalf of the Issuers, the Subsidiary
Guarantors or the officers or directors of or any Person controlling the Issuers
or the Subsidiary Guarantors, (iii) acceptance of any of the Exchange Securities
and (iv) any sale of Registrable Securities pursuant to a Shelf Registration
Statement.
6. Miscellaneous.
-------------
(a) Joinder of Guarantors. Upon consummation of the Acquisition, each of
the domestic subsidiaries of the Company shall become a party to this Agreement
by executing and delivering a Joinder Agreement to the Registration Rights
Agreement in the form attached hereto as Exhibit A.
(b) No Inconsistent Agreements. The Issuers and the Subsidiary Guarantors
represent, warrant and agree that (i) 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 any other outstanding securities issued or
guaranteed by the Issuers or any Subsidiary Guarantor under any other agreement
and (ii) neither the Issuers nor any Subsidiary Guarantor has entered into, or
on or after the date of this Agreement will enter into, any agreement that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at least
a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
consent; provided that no amendment, modification, supplement, waiver or consent
--------
to any departure from the provisions of Section 5 hereof shall
20
be effective as against any Holder of Registrable Securities unless consented to
in writing by such Holder.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
firstclass 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 Issuers by means of a notice given in accordance with the provisions of this
Section 6(d), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; and (ii) if to the
Issuers and the Subsidiary Guarantors, initially at the Issuers' address set
forth in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 6(d). All such
notices and communications shall be deemed to have been duly given: at the 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 each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
--------
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the 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 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. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Issuers or the Subsidiary Guarantors with respect to any
failure by a Holder to comply with, or any breach by any Holder of, any of the
obligations of such Holder under this Agreement.
(f) Purchases and Sales of Securities. The Issuers and the Subsidiary
Guarantors shall not, and shall use their reasonable best efforts to cause their
affiliates (as defined in Rule 405 under the Securities Act) not to, purchase
and then resell or otherwise transfer any Securities.
(g) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Issuers and the
Subsidiary 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
it
21
deems such enforcement necessary or advisable to protect its rights or the
rights of other Holders hereunder.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law and Submission to Jurisdiction. This Agreement shall be
governed by the laws of the State of New York, without giving effect to the
conflicts of laws principles thereof.
The Issuers and the Initial Purchasers irrevocably and unconditionally
submit to the exclusive jurisdiction of any state or federal court sitting in
the City of New York over any suit, action or proceeding arising out of or
relating to this Agreement. The Issuers and Initial Purchasers hereby agree that
service of any process, summons, notice or document by registered mail addressed
to any Issuer or Initial Purchaser, as applicable, shall be effective service of
process for any suit, action or proceeding brought in any such court. The
Issuers and Initial Purchasers irrevocably and unconditionally waive any
objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such suit, action or proceeding has
been brought in an inconvenient forum. The Issuers and Initial Purchasers agree
that a final judgment in any such suit, action or proceeding brought in any such
court shall be conclusive and binding upon the parties and may be enforced in
any other courts to whose jurisdiction the Issuers and Initial Purchasers are or
may be subject, by suit upon judgment. The Issuers and the Initial Purchasers
irrevocably agree to waive trial by jury in any suit, action, proceeding, claim
or counterclaim brought by on behalf of any party related to or arising out of
this Agreement.
(k) 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.
(l) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. This Agreement may not be
amended or modified except by a writing executed by each of the parties hereto.
Section headings herein are for convenience only and are not a part of this
Agreement. If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable or against public policy, the remainder of the terms, provisions,
22
covenants and restrictions contained herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. The Issuers and
the Initial Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, void or
unenforceable provisions.
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ARMKEL, LLC
By: ______________________
Name:
Title:
ARMKEL FINANCE, INC.
By: ______________________
Name:
Title:
Confirmed and accepted as of the date first above written:
X.X. XXXXXX SECURITIES INC.
For itself and on behalf of the
several Initial Purchasers
By _______________________
Authorized Signatory
Exhibit A
ARMKEL, LLC
ARMKEL FINANCE, INC.
$225,000,000
9 1/2% Senior Subordinated Notes due 2009
[Form Of]
JOINDER TO THE REGISTRATION RIGHTS AGREEMENT
--------------------------------------------
[ ] ___, 2001
X.X. Xxxxxx Securities Inc.
Deutsche Banc Alex. Xxxxx Inc.
c/o X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement (the
"Registration Rights Agreement") dated August 28, 2001, among Armkel, LLC, a
-----------------------------
Delaware limited liability company (the "Company"), and Armkel Finance, Inc., a
Delaware corporation and a wholly owned subsidiary of the Company ("Armkel
Finance", and together with the Company, the "Issuers"), X.X. Xxxxxx Securities
Inc. and Deutsche Banc Alex. Xxxxx Inc. (the "Initial Purchasers") concerning
the purchase of the Securities (as defined in the Registration Rights Agreement)
from the Issuers by the several Initial Purchasers. Capitalized terms used
herein but not defined herein shall have the meanings assigned to such terms in
the Registration Rights Agreement. This is the agreement referred to in Section
6(a) of the Registration Rights Agreement.
The Issuers and each of the Subsidiary Guarantors listed on
Schedule I hereto agree that this letter agreement is being executed and
delivered in connection with the issue and sale of the Securities pursuant to
the Purchase Agreement and to induce the Initial Purchasers to purchase the
Securities thereunder and is being executed concurrently with the consummation
of the Acquisition.
1. Joinder. Each of the parties hereto hereby agrees to be become
-------
bound by the terms, conditions and other provisions of the Registration Rights
Agreement with all attendant rights, duties and obligations stated therein, with
the same force and effect as if originally named as a Subsidiary Guarantor
therein and as if such party executed the Registration Rights Agreement on the
date thereof.
2. Representations, Warranties and Agreements of the Subsidiary
------------------------------------------------------------
Guarantors. Each Subsidiary Guarantor represents and warrants to, and agrees
----------
with, the several Initial Purchasers on and as of the date hereof that such
2
Subsidiary Guarantor has the corporate or limited liability power, as the
case may be, to execute and deliver this letter agreement and all corporate or
limited liability action, as the case may be, required to be taken by it for the
due and proper authorization, execution, delivery and performance of this letter
agreement and the consummation of the transactions contemplated hereby has been
duly and validly taken; this letter agreement has been duly authorized, executed
and delivered by such Subsidiary Guarantor and constitutes a valid and legally
binding agreement of such Subsidiary Guarantor enforceable against such
Subsidiary Guarantor in accordance with its terms, except to the extent that
such enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors' rights generally and by general equitable principles
(whether considered in a proceeding in equity or at law).
3. GOVERNING LAW. THIS LETTER AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
4. Counterparts. This Agreement may be executed in one or more
------------
counterparts (which may include counterparts delivered by telecopier) and, if
executed in more than one counterpart, the executed counterparts shall each be
deemed to be an original, but all such counterparts shall together constitute
one and the same instrument.
5. Amendments. No amendment or waiver of any provision of this
----------
Agreement, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
6. Headings. The headings herein are inserted for the convenience
--------
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
3
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Issuers, the Subsidiary
Guarantors and the several Initial Purchasers in accordance with its terms.
Very truly yours,
