Exhibit 4.2
BREED TECHNOLOGIES, INC.
$330,000,000
9 1/4% SENIOR SUBORDINATED NOTES DUE 2008
REGISTRATION RIGHTS AGREEMENT
New York, New York
April 28, 1998
NationsBanc Xxxxxxxxxx Securities, LLC
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Breed Technologies, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell (the "Initial Placement") to NationsBanc Xxxxxxxxxx
Securities, Inc. and Prudential Securities Incorporated (the "Initial
Purchasers"), upon the terms set forth in a purchase agreement dated April 20,
1998 (the "Purchase Agreement"), its 9 1/4% Senior Subordinated Notes due 2008
(the "Notes"). The Notes are to be unconditionally guaranteed on an unsecured
senior subordinated basis by the Subsidiary Guarantors (as defined in the
Indenture). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and purchase the Notes and in satisfaction of a condition to
your obligations under the Purchase Agreement, the Company agrees with you for
the benefit of the holders from time to time of the Notes (including the Initial
Purchasers) (each of the foregoing a "Holder" and together the "Holders"), as
follows:
1. Definitions. Capitalized terms used herein without definition
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shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Affiliate" of any specified person means any other person that,
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directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified person. For purposes of this
definition, control of a person means the power,
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direct or indirect, to direct or cause the direction of the management and
policies of such person whether by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Closing Date" means April 28, 1998.
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"Commission" means the Securities and Exchange Commission.
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"Company" has the meaning set forth in the preamble hereto.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities issued by the Company and
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guaranteed by the Subsidiary Guarantors, identical in all material respects
to the Notes (except that (i) interest thereon shall accrue from the last
date on which interest was paid on the Notes or, if no such interest has
been paid, from April 28, 1998 and (ii) the interest rate step-up
provisions and the transfer restrictions pertaining to the Notes will be
eliminated in the Exchange Notes), to be issued under the Indenture.
"Exchange Offer" means the proposed offer to the Holders to issue and
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deliver to such Holders, in exchange for the Notes, a like principal amount
of Exchange Notes.
"Exchange Offer Registration Period" means the earlier of (A) the
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period until the expiration of the 90/th/ day after the consummation of the
Exchange Offer and (B) such time as all resales of Exchange Notes
(including, subject to the time periods set forth herein, any resales by
Exchanging Dealers) covered by such Exchange Offer Registration Statement
have been made.
"Exchange Offer Registration Statement" means a registration statement
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of the Company on an appropriate form under the Securities Act with respect
to the Exchange Offer, all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include the Initial
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Purchasers) that is a broker-dealer, electing to exchange Notes acquired
for its own account as a result of market-making activities or other
trading activities for Exchange Notes.
"Holder" has the meaning set forth in the preamble hereto.
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"Indenture" means the indenture relating to the Notes and the Exchange
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Notes, to be dated as of the Closing Date, among the Company, the
Subsidiary Guarantors and the Trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance
with the terms thereof.
"Initial Placement" has the meaning set forth in the preamble hereto.
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"Initial Purchasers" has the meaning set forth in the Purchase
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Agreement.
"Losses" has the meaning set forth in Section 6(d) hereto.
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"Majority Holders" means the Holders of a majority of the aggregate
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principal amount of Notes registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
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bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
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"Offering Memorandum" has the meaning set forth in the Purchase
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Agreement.
"Prospectus" means the prospectus included in any Registration
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Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Notes or
the Exchange Notes covered by such Registration Statement, and all
amendments and supplements to the Prospectus, including post-effective
amendments.
"Purchase Agreement" has the meaning set forth in the preamble hereto.
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"Registration Statement" means any Exchange Offer Registration
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Statement or Shelf Registration Statement that covers any of the Notes or
the Exchange Notes pursuant to the provisions of this Agreement, amendments
and supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto, and all material incorporated by reference therein.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission promulgated thereunder.
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"Shelf Registration" means a registration effected pursuant to Section
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3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
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hereof.
"Shelf Registration Statement" means a "shelf" registration statement
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of the Company pursuant to the provisions of Section 3 hereof, which covers
some or all of the Notes or Exchange Notes, as applicable, on an
appropriate form under Rule 415 under the Securities Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to
such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and
all material incorporated by reference therein.
"Subsidiary Guarantees" has the meaning set forth in the Purchase
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Agreement.
"Subsidiary Guarantors" has the meaning set forth in the preamble
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hereto.
"Trustee" means the trustee with respect to the Notes or Exchange
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Notes, as applicable, under the Indenture.
"underwriter" means any underwriter of Notes in connection with an
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offering thereof under a Shelf Registration Statement.
2. Exchange Offer; Resales of Exchange Notes by Exchanging Dealers;
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Private Exchange.
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(a) The Company shall prepare and, on or prior to the 60th calendar
day following the Closing Date, shall file with the Commission the Exchange
Offer Registration Statement with respect to the Exchange Offer. The Company
shall use its best efforts (i) to cause the Exchange Offer Registration
Statement to be declared effective under the Securities Act on or prior to the
150th calendar day following the Closing Date and remain effective until the
closing of the Exchange Offer and (ii) to consummate the Exchange Offer on or
prior to the 180th calendar day following the Closing Date.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder electing to exchange
Notes for Exchange Notes to resell such Exchange Notes from and after their
receipt without any limitations or restrictions under the Securities Act and
without material restrictions under the securities laws of a substantial portion
of the several states of the United States (provided that such Holder represents
to the Company and its counsel in writing that at the time of the consummation
of the Exchange Offer, (i) the Exchange Notes acquired pursuant to the Exchange
Offer are being acquired in
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the ordinary course of business of the person receiving such Exchange Notes,
whether or not such person is the Holder, (ii) neither the Holder of Notes nor
any such other person has an arrangement or understanding with any person to
participate in the distribution of such Exchange Notes, (iii) neither the Holder
nor any such other person is an "affiliate" of the Company as defined in Rule
405 under the Securities Act or, if such Holder is an "affiliate," that such
Holder will comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable, (iv) if the Holder is not a broker-
dealer, that neither the Holder nor any such other person is engaged in or
intends to engage in the distribution of such Exchange Notes, or (v) if such
Holder is a broker-dealer, that it will receive Exchange Notes for its own
account in exchange for Notes that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Notes).
(c) In connection with the Exchange Offer, the Company shall 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, 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 Notes validly tendered will be accepted for exchange;
(ii) the dates of acceptance for exchange;
(iii) that any Note 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 Note exchanged pursuant to the
Exchange Offer will be required to surrender such Note, together with the
enclosed letters of transmittal, to the exchange agent at the address
(located in the Borough of Manhattan, The City of New York) specified in
the notice prior to the close of business on the last day of acceptance for
exchange; and
(v) that Holders will be entitled to withdraw their election, not
later than the close of business on the last day of acceptance for
exchange, by sending to the exchange agent 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 Notes delivered for exchange and a
statement that such Holder is withdrawing his election to have such Notes
exchanged; and shall keep the Exchange Offer open for acceptance for not
less than 20 business days (or longer if required by applicable law) after
the date notice thereof is mailed to the Holders; utilize the services of a
depositary for the Exchange Offer with
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an address in the Borough of Manhattan, The City of New York; and comply in
all material respects with all applicable laws relating to the Exchange
Offer.
(d) As soon as reasonably practicable after the close of the
Exchange Offer, the Company shall:
(i) accept for exchange all Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder Exchange Notes equal in principal amount to the Notes of such Holder
so accepted for exchange.
(e) The Initial Purchasers and the Company acknowledge that,
pursuant to interpretations by the staff of the Commission of Section 5 of the
Securities Act, and in the absence of an applicable exemption therefrom, each
Exchanging Dealer is required to deliver a Prospectus in connection with a sale
of any Exchange Notes received by such Exchanging Dealer pursuant to the
Exchange Offer in exchange for Notes acquired for its own account as a result of
market-making activities or other trading activities. Accordingly, the Company
shall:
(i) include the information set forth in Annex A hereto on the cover
of the Exchange Offer Registration Statement, in Annex B hereto in the
forepart of the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and in Annex D hereto in the letter
of transmittal delivered pursuant to the Exchange Offer; and
(ii) use its best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act during the
Exchange Offer Registration Period for delivery of the prospectus included
therein by Exchanging Dealers in connection with sales of Exchange Notes
received pursuant to the Exchange Offer, as contemplated by Section 4(h)
below.
(f) The Company shall use its 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 that the Exchange Offer does not violate applicable
law or any applicable interpretation of the staff of
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the Commission. The Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial
Purchasers shall have the right, subject to applicable law, to contact such
Holders and otherwise facilitate the tender of Notes in the Exchange Offer.
3. Shelf Registration. If (i) because of any change in law or
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applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Exchange Offer as contemplated by Section 2 hereof, or (ii) for any reason
other than those specified in clause (i) above, the Exchange Offer is not
consummated within 180 days of the Closing Date unless the Exchange Offer has
commenced, in which case, the Exchange Offer is not consummated within 30 days
after the date on which the Exchange Offer was commenced (or longer period
required by applicable law), or (iii) any Initial Purchaser so requests, with
respect to Notes not eligible to be exchanged for Exchange Notes in the Exchange
Offer and held by it following consummation of the Exchange Offer within 120
days following consummation of the Exchange Offer, or (iv) any Holder (other
than the Initial Purchasers) is not eligible to participate in the Exchange
Offer, the following provisions shall apply:
(a) The Company shall, as promptly as practicable (but in any event
on or prior to 60 days after such filing obligation arises), file with the
Commission a Shelf Registration Statement relating to the offer and sale of
the Notes, as applicable, not eligible to be exchanged for Exchange Notes,
as applicable, by the Holders from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement and Rule 415 under the Securities Act; provided
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that, with respect to Exchange Notes received by the Initial Purchasers in
exchange for Notes constituting any portion of an unsold allotment, the
Company may, if permitted by current interpretations by the Commission's
staff, file a post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Regulation S-K Items 507
and/or 508, as applicable, in satisfaction of its obligations under this
paragraph (a) with respect thereto, and any such Exchange Offer
Registration Statement, as so amended, shall be referred to herein as, and
governed by the provisions herein applicable to, a Shelf Registration
Statement.
(b) The Company shall use its best efforts to cause the Shelf
Registration Statement to be declared effective under the Securities Act on
or prior to 60 calendar days after filing such Shelf Registration Statement
pursuant to this Section 3 and to keep such Shelf Registration Statement
continuously effective in order to permit the Prospectus contained therein
to be usable by Holders for a period of two years from the date the Shelf
Registration Statement is declared effective by the Commission or such
shorter period that will terminate when all the Notes or Exchange Notes, as
applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf
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Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement effective during
the requisite period if it voluntarily takes any action that would result
in Holders of Notes covered thereby not being able to offer and sell such
Notes during that period, unless (i) such action is required by applicable
law or (ii) such action is taken by the Company in good faith and for valid
business reasons (not including avoidance of the Company's obligations
hereunder), including the acquisition or divestiture of assets, so long as
the Company promptly thereafter complies with the requirements of Section
4(k) hereof, if applicable.
4. Registration Procedures. In connection with any Shelf
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Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Company shall, within 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 any
document which 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, the Holders and their
counsel) and make such representatives of the Company as shall be
reasonably requested by the Initial Purchasers or their counsel (and, in
the case of a Shelf Registration Statement, the Holders or their counsel)
available for discussion of such document, and shall use its reasonable
efforts to reflect in each such document, when so filled with the
Commission, such comments as the Initial Purchasers and, in the case of a
Shelf Registration Statement, counsel for the Holders, as they may
reasonably propose; each of the Initial Purchasers agrees that, if it
receives timely notice and drafts under this clause (a), it will not take
actions or make objections pursuant to this clause (a) such that the
Company are unable to comply with their obligations under Section 2.
(b) The Company shall use its reasonable best efforts to ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus contained therein and any amendment or supplement
thereto complies in all material respects with the Securities Act and
the rules and regulations thereunder;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit
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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 Registration Statement,
including any amendment or supplement to such Prospectus, does not
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and, in the
case of a Shelf Registration Statement, the Holders of Notes covered
thereby, and, if requested by the Initial Purchasers or any such Holder,
confirm such advice in writing:
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective; and
(ii) of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus included
therein or for additional information.
(2) During the Shelf Registration Period or the Exchange Offer
Registration Period, as applicable, the Company shall advise the Initial
Purchasers and, in the case of a Shelf Registration Statement, the Holders
of Notes covered thereby, and, in the case of an Exchange Offer
Registration Statement, any Exchanging Dealer that has provided in writing
to the Company a telephone or facsimile number and address for notices,
and, if requested by the Initial Purchasers or any such Holder or
Exchanging Dealer, confirm such advice in writing:
(i) 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;
(ii) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the Notes included
therein for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose; and
(iii) of the happening of any event that requires the making of
any changes in the Registration Statement or the Prospectus so that,
as of such date, the Registration Statement or the Prospectus does not
include an untrue
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statement of a material fact or omit to state a material fact
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made)
not misleading (which advice shall be accompanied by an instruction to
suspend the use of the Prospectus until the requisite changes have
been made).
(d) The Company shall use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration
Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Notes covered by any
Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits thereto (including those incorporated by
reference).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Notes covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request;
and the Company consents to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Notes in connection
with the offering and sale of the Notes covered by the Prospectus or any
amendment or supplement thereto unless such Holders have received notice
from the Company that is has suspended the use of the Prospectus pursuant
to Section 3(b)(i) or (ii).
(g) The Company shall furnish to each Exchanging Dealer that so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto.
(h) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to each Exchanging Dealer, without charge, as many copies
of the Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer may
reasonably request for delivery by such Exchanging Dealer in connection
with a sale of Exchange Notes received by it pursuant to the Exchange
Offer; and the Company consents to the use of the Prospectus or any
amendment or supplement thereto by any such Exchanging Dealer in connection
with the offering and sale of the Exchange Notes as provided in Section
2(e) above.
(i) Prior to the Exchange Offer or any other offering of Notes
pursuant to any Registration Statement, the Company shall register or
qualify or cooperate with the
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Holders of Notes included therein and their respective counsel in
connection with the registration or qualification of such Notes for offer
and sale under the securities or blue sky laws of such states as any such
Holders reasonably request in writing and do any and all other acts or
things necessary or advisable to enable the offer and sale in such states
of the Notes covered by such Registration Statement; provided, however,
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that the Company will not be required to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not then so
qualified, to file any general consent to service of process or to take any
action that would subject it to general service of process in any such
jurisdiction where it is not then so subject or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is
not otherwise so subject.
(j) The Company shall cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Notes to be
sold pursuant to any Registration Statement free of any restrictive legends
and in denominations of $1,000 or an integral multiple thereof and
registered in such names as Holders may request prior to sales of Notes
pursuant to such Registration Statement.
(k) Subject to the Company's right to suspend the use of any
Prospectus under the Shelf Registration Statement pursuant to Section
3(b)(i) or (ii), upon the occurrence of any event contemplated by paragraph
(c)(2)(iii) of this Section 4, the Company shall promptly prepare and file
a post-effective amendment to any Registration Statement or an amendment or
supplement to the related Prospectus or any other required document so
that, as thereafter delivered to purchasers of the Notes included therein,
the Prospectus will not include an untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
and, in the case of a Shelf Registration Statement, notify the Holders to
suspend use of the Prospectus as promptly as practicable after the
occurrence of such an event.
(l) Not later than the effective date of any such Registration
Statement hereunder, the Company shall provide a CUSIP number for the Notes
or Exchange Notes, as the case may be, registered under such Registration
Statement, and provide the Trustee with printed certificates for such Notes
or Exchange Notes, in a form eligible for deposit with The Depository Trust
Company.
(m) The Company shall use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and shall make
generally available to its security holders as soon as practicable after
the effective date of the applicable Registration Statement an earnings
statement satisfying the provisions of Section 11(a) of the Securities Act.
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(n) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), in a
timely manner.
(o) The Company may require each Holder of Notes to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such Notes as the
Company may from time to time reasonably require for inclusion in such
Registration Statement.
(p) Intentionally Omitted.
(q) In the case of any Shelf Registration Statement, the Company
shall enter into such customary agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite or
to facilitate the registration or the disposition of any Notes included
therein, and in connection therewith, if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 6 (or such
other provisions and procedures acceptable to the Majority Holders and the
Managing Underwriters, if any) with respect to all parties to be
indemnified pursuant to Section 6.
(r) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders of
Notes to be registered thereunder, any underwriter participating in
any disposition pursuant to such Shelf Registration Statement, and any
attorney, accountant or other agent retained by the Holders or any
such underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and any of its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations and make such representatives of the Company as
shall be reasonably requested by the Initial Purchasers or Managing
Underwriters, if any, available for discussion of any such
Registration Statement; provided, however, that any information that
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is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality other than as a
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result of a disclosure of such information by any such Holder,
underwriter, attorney, accountant or agent;
(iii) in connection with any underwritten offering under a Shelf
Registration Statement, make such representations and warranties to
the Holders of Notes registered thereunder and the underwriters, if
any, in form, substance and scope as are customarily made by issuers
to underwriters in similar underwritten offerings as may be reasonably
requested by them;
(iv) in connection with any underwritten offering under a Shelf
Registration Statement, obtain opinions of counsel to the Company and
the Subsidiary Guarantors and updates thereof (which opinions (in
form, scope and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters as are customarily
covered in opinions requested in similar underwritten offerings;
(v) in connection with any underwritten offering under a Shelf
Registration Statement, obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the
Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to the underwriters, if any, and use reasonable
efforts to have such letter addressed to the selling Holders of Notes
registered thereunder (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of Certified
Public Accountants (AICPA) ("SAS 72")), in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with similar underwritten offerings, or if the provision of
such "cold comfort" letters is not permitted by SAS No. 72 or if
requested by the Initial Purchasers or their counsel in lieu of a
"cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35 of the AICPA, covering matters
requested by the Initial Purchasers or their counsel; and
(vi) in connection with any underwritten offering under a Shelf
Registration Statement, deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the Managing
Underwriters, if any, and customarily delivered in similar offerings,
including those to evidence compliance with Section 4(k) and with any
conditions contained in the underwriting agreement or other agreement
entered into by the Company.
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The foregoing actions set forth in clauses (iii), (v) and (vi) of this
Section 4(r) shall be performed at the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto. The
foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(r) shall be performed at each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(s) The Company shall, in the case of a Shelf Registration, use its
best efforts to cause all Notes to be listed on any securities exchange or
any automated quotation system on which similar securities issued by the
Company are then listed if requested by the Majority Holders, to the extent
such Notes satisfy applicable listing requirements.
5. Registration Expenses; Remedies. (a) The Company shall bear all
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expenses incurred in connection with the performance of its obligations under
Sections 2, 3 and 4 hereof, including without limitation: (i) all Commission,
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 of the Exchange Notes or Notes), (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, if any, (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 Company 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 Company,
including the expenses of any special audits or "cold comfort" letters required
by or incident to such performance and compliance, but excluding 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 Notes by a
Holder.
(b) The Notes provide that in the event that either (i) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to the
60th calendar day following the Closing Date or (ii) the Exchange Offer is not
consummated or a Shelf Registration Statement is not declared effective on or
prior to the 180th calendar day following the Closing Date, the interest rate
borne by the Notes will be increased by .25% per annum for the first 90 days
following the 60-day period referred to in clause (i) above or the first 90
15
days following the 180-day period referred to in clause (ii) above. Such
interest will be increased by an additional .25% per annum at the beginning of
each subsequent 90-day period in the case of clause (i) or (ii) above; provided,
--------
however, that in no event will the interest rate borne by the Notes be increased
-------
by more than 1.5% per annum. Upon the filing of the Exchange Offer Registration
Statement, the consummation of the Exchange Offer or the effectiveness of a
Shelf Registration Statement, as the case may be, the interest rate borne by the
Notes from the date of such filing, consummation or effectiveness, as the case
may be, will be reduced to the original interest rate; provided, however, that,
-------- -------
if after such reduction in interest rate, a different event specified in clause
(i) or (ii) above occurs, the interest rate may again be increased pursuant to
the foregoing provisions.
(c) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Company acknowledges that any failure by the Company to
comply with its obligations under Sections 2 and 3 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 obligations under Sections 2 and 3 hereof.
6. Indemnification and Contribution. (a) In connection with any
--------------------------------
Registration Statement, the Company agrees to indemnify and hold harmless each
Holder of Notes covered thereby (including the Initial Purchasers and, with
respect to any Prospectus delivery as contemplated by Sections 2(e) and 4(h)
hereof, each Exchanging Dealer) and each person who controls such Holder within
the meaning of either the Securities Act or the Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement as
originally filed or in any amendment thereof, or in any preliminary Prospectus
or Prospectus, or in any amendment thereof or supplement thereto, 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 (in the case of the Prospectus, in light of the circumstances under
which they were made) not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage or liability or action; provided, however, that the Company will
-------- -------
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any such indemnified party specifically for inclusion therein or (ii)
made in
16
the Preliminary Prospectus or Prospectus, or in any amendment or supplement
thereto, if a copy of the Prospectus, as amended or supplemented, was not
delivered by or on behalf of the indemnified party to the person asserting any
claim against such indemnified party, and the untrue statement contained in or
omission from such Preliminary Prospectus or Prospectus, or in any amendment or
supplement thereto, was corrected in the Prospectus, as amended or supplemented,
if applicable. This indemnity agreement will be in addition to any liability
that the Company may otherwise have.
The Company also agrees to indemnify or contribute to Losses of, as
provided in Section 6(d) hereof, any underwriters of Notes registered under a
Shelf Registration Statement and each person who controls such underwriters on
the same basis as that of the indemnification of the Initial Purchasers and the
selling Holders provided in this Section 6(a) and shall, if requested by any
Holder, enter into an underwriting agreement reflecting such agreement, as
provided in Section 4(q) hereof.
(b) Each Holder of Notes covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated by Sections 2(e) and 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Company and each Person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act to the same extent as the foregoing indemnity from the Company to
each such Holder, but only with respect to written information furnished to the
Company by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 6, notify the indemnifying party in writing of the commencement thereof;
but the failure so to notify the indemnifying party (i) will not relieve the
indemnifying party from liability under paragraph (a) or (b) above unless and to
the extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses or otherwise materially prejudices the
indemnifying party 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 shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall 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
17
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of investigation
and actual out-of-pocket expenses incurred by the indemnified party in
connection with appearing as a witness or a party defendant in any such action
and except as set forth below. Notwithstanding the foregoing, the indemnified
party shall have the right to employ separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with an actual
conflict of interest, (ii) the actual or potential defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not, pursuant to the immediately preceding sentence,
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice from the
indemnified party to the indemnifying party of the institution of such action or
(iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. It is understood that
the indemnifying party shall not, in connection with any proceeding or related
proceedings, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. Such firm shall
be designated in writing by the Holders in the case of parties indemnified
pursuant to paragraph (a) above and by the Company in the case of parties
indemnified pursuant to paragraph (b) above. The indemnifying party shall not be
liable for any settlement of any proceeding effectuated without its written
consent (not to be unreasonably withheld), but if settled with such consent or
if there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment to the extent required by paragraph (a) or (b)
above, as applicable. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the third
and fourth sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 20 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received notice of the terms of such
settlement at least five business days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution
18
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall have a joint and several
obligation to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending the same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement that resulted in such Losses; provided, however, that in
-------- -------
no case shall any Initial Purchaser or any subsequent Holder of any Note or
Exchange Note be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Note, or in the case of an
Exchange Note, applicable to the Note that was exchangeable into such Exchange
Note, as set forth on the cover page of the Offering Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Notes purchased by such underwriter under the
Registration Statement that resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting expenses) as
set forth on the cover page of the Offering Memorandum and (y) the total amount
of additional interest that the Company was not required to pay as a result of
registering the Notes covered by the Registration Statement that resulted in
such losses. Benefits received by the Initial Purchasers shall be deemed to be
equal to the total purchase discounts and commissions as set forth on the cover
page of the Offering Memorandum, and benefits received by any other Holders
shall be deemed to be equal to the value of receiving Notes or Exchange Notes,
as applicable, registered under the Securities Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming a part of
the Registration Statement that resulted in such Losses. Relative fault shall be
determined by reference to, among other things, whether any alleged untrue
statement or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata
19
allocation or any other method of allocation that did not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 6, each person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act shall
have the same rights to contribution as such Holder, and each person who
controls the Company within the meaning of either the Securities Act or the
Exchange Act shall have the same rights to contribution as the Company, subject
in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or any of the officers, directors or controlling persons referred to
in Section 6 hereof, and will survive the sale by a Holder of Notes covered by a
Registration Statement.
7. Miscellaneous.
-------------
(a) No Inconsistent Agreement. The Company has not, as of the date
-------------------------
hereof, entered into, nor shall any of them, on or after the date hereof, enter
into, any agreement that conflicts with the rights granted to the Holders herein
or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
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 the Holders of at least a majority of the then outstanding aggregate
principal amount of Notes (or, after the consummation of any Exchange Offer in
accordance with Section 2 hereof, of Exchange Notes); provided that, with
--------
respect to any matter that directly or indirectly affects the rights of the
Initial Purchasers hereunder, the Company shall obtain the written consent of
the Initial Purchasers. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Notes are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders may be given by the
Majority Holders, determined on the basis of Notes being sold rather than
registered under such Registration Statement.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
20
(i) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 7(c),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to NationsBanc Xxxxxxxxxx Securities, Inc.;
(ii) if to the Initial Purchasers, at NationsBank Corporate Center,
000 Xxxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000; and
(iii) if to the Company, at 0000 Xxx Xxxxx Xxxxxxx, X.X. Xxx 00000,
Xxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxx, Esq., Associate General
Counsel.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers, on the one hand, or the Company,
on the other, by notice to the other party or parties may designate additional
or different addresses for subsequent notices or communications.
(d) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company, subsequent Holders of Notes and/or Exchange Notes. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of Notes
and/or Exchange Notes and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(h) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in
21
any way impaired or affected thereby, it being intended that all of the rights
and privileges of the parties shall be enforceable to the fullest extent
permitted by law.
(i) Notes Held by the Company, etc. Whenever the consent or approval
------------------------------
of Holders of a specified percentage of principal amount of Notes or Exchange
Notes is required hereunder, Notes or Exchange Notes, as applicable, held by the
Company or its Affiliates (other than subsequent Holders of Notes or Exchange
Notes if such subsequent Holders are deemed to be Affiliates solely by reason of
their holdings of such Notes or Exchange Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Guarantors and you.
Very truly yours,
BREED TECHNOLOGIES, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
accepted as of the date first above written.
NATIONSBANC XXXXXXXXXX
SECURITIES LLC
By: /s/ Xxxxx X. Xxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxx, Xx.
Title: Managing Director
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Managing Director
ANNEX A
Each broker-dealer that receives Exchange Notes 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 Notes. 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 Notes received in exchange for Notes where such Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities. The Company has agreed that, starting on the
Expiration Date (as defined herein) and ending on the close of business 180 days
after the Expiration Date, 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 Notes for its own account in
exchange for Notes, where such Notes 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
Notes. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Notes 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 Notes. 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 Notes received in
exchange for Notes where such Notes were acquired as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date and ending on the close of business one year 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 such date all dealers effecting transactions in the Exchange
Notes may be required to deliver a prospectus.
ANNEX D
If the undersigned is a broker-dealer that will receive Exchange Notes for
its own account in exchange for Notes, it represents that the Notes to be
exchanged for the Exchange Notes were acquired by it as a result of market-
making activities or other trading activities and acknowledges that it will
deliver a prospectus in connection with any resale of such Exchange Notes;
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.
