Exhibit 4.3
EXECUTION COPY
Albany International Corp.
2.25% Convertible Senior Notes Due 2026
Registration Rights Agreement
March 13, 2006
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Albany International Corp., a Delaware corporation (the "Company"),
proposes to issue and sell to the initial purchasers (the "Initial Purchasers")
listed on Schedule I to the purchase agreement dated March 8, 2006 (the
"Purchase Agreement"), for whom X.X. Xxxxxx Securities Inc. ("JPMorgan") and
Banc of America Securities LLC ("Banc of America") are acting as
representatives, up to $180,000,000 aggregate principal amount of its 2.25%
Convertible Senior Notes due 2026 (the "Notes"). Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Purchase
Agreement.
As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to the obligations of the
Initial Purchasers thereunder, the Company agrees with the Initial Purchasers,
for the benefit of the holders (including the Initial Purchasers) of the Notes
and the Shares (as defined below) (collectively, the "Holders"), as follows:
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following terms
shall have the following meanings:
(a) "Additional Interest" has the meaning assigned thereto in
Section 2(d).
(b) "Additional Interest Payment Date" has the meaning assigned
thereto in Section 2(d).
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(c) "Affiliate" has the meaning set forth in Rule 405 under the
Securities Act, except where otherwise expressly provided.
(d) "Agreement" means this Registration Rights Agreement, as the
same may be amended from time to time pursuant to the terms hereof.
(e) "Business Day" means any day on which The New York Stock
Exchange, Inc. is open for trading.
(f) "Closing Date" means the date on which any Notes are initially
issued.
(g) "Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(h) "Company" has the meaning specified in the first paragraph of
this Agreement.
(i) "Deferral Notice" has the meaning assigned thereto in Section
3(b).
(j) "Deferral Period" has the meaning assigned thereto in Section
3(b).
(k) "Effective Period" has the meaning assigned thereto in Section
2(a).
(l) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(m) "Holder" means each holder, from time to time, of Registrable
Securities (including the Initial Purchasers).
(n) "Indenture" means the Indenture dated as of March 13, 2006,
among the Company and JPMorgan Chase Bank, N.A., as Trustee pursuant to
which the Notes are being issued.
(o) "Initial Placement" means the initial placement of the Notes
pursuant to the terms of the Purchase Agreement.
(p) "Initial Purchasers" has the meaning specified in the first
paragraph of this Agreement.
(q) "Material Event" has the meaning assigned thereto in Section
3(a)(iii).
(r) "Majority Holders" shall mean, on any date, holders of the
majority of the Shares constituting Registrable Securities; for the
purposes of this definition, Holders of Notes constituting Registrable
Securities shall be deemed to be the Holders of
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the number of Shares into which such Notes are or would be convertible as
of such date.
(s) "NASD" shall mean the National Association of Securities
Dealers, Inc.
(t) "NASD Rules" shall mean the Conduct Rules and the By-Laws of the
NASD.
(u) "Notes" means the 2.25% Convertible Senior Notes Due 2026 to be
issued under the Indenture and sold by the Company to the Initial
Purchasers.
(v) "Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the
Form of Selling Securityholder Notice and Questionnaire attached as Annex
A to the Offering Memorandum.
(w) "Notice Holder" means, on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such
date.
(x) "Offering Memorandum" means the Offering Memorandum dated March
8, 2006 relating to the offer and sale of the Securities.
(y) "Person" means a corporation, limited liability company,
association, partnership, organization, business, individual, government
or political subdivision thereof or governmental agency.
(z) "Prospectus" means the prospectus included in any Shelf
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part
of a registration statement in reliance upon Rule 430A under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by
reference in such Prospectus.
(aa) "Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
(bb) "Registrable Securities" means the Securities; provided,
however, that such Securities shall cease to be Registrable Securities
when (i) in the circumstances contemplated by Section 2(a), a registration
statement registering such Securities under the Securities Act has been
declared or becomes effective and such Securities have been sold or
otherwise transferred by the Holder thereof pursuant to such effective
registration statement; (ii) such Securities are sold pursuant to Rule 144
under circumstances in which any legend borne by such Securities relating
to restrictions on transferability
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thereof, under the Securities Act or otherwise, is removed or such
Securities are eligible to be sold pursuant to Rule 144(k) or any
successor provision; or (iii) such Securities shall cease to be
outstanding (including, in the case of the Notes, upon conversion into
Shares).
(cc) "Registration Default" has the meaning assigned thereto in
Section 2(e).
(dd) "Registration Expenses" has the meaning assigned thereto in
Section 5.
(ee) "Rules" refers to the rules promulgated under the Securities
Act.
(ff) "Securities" means, collectively, the Notes and the Shares.
(gg) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(hh) "Shares" means the shares of Class A common stock of the
Company, par value $0.001 per share, into which the Notes are convertible
or that have been issued upon any conversion from Notes into Class A
common stock of the Company.
(ii) "Shelf Registration Statement" means the shelf registration
statement referred to in Section 2(a), as amended or supplemented by any
amendment or supplement, including post-effective amendments and any
additional information contained in a form of prospectus or prospectus
supplement that is deemed retroactively to be a part of the shelf
registration statement pursuant to Rules 430A, 430B or 430C, and all
materials incorporated by reference or explicitly deemed to be
incorporated by reference in such Shelf Registration Statement.
(jj) "Special Counsel" shall have the meaning assigned thereto in
Section 5.
(kk) "Trustee" shall have the meaning assigned such term in the
Indenture.
(ll) "Trust Indenture Act" means the Trust Indenture Act of 1939, or
any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
Unless the context otherwise requires, any reference herein to a "Section"
or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time to
time.
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2. Registration Under the Securities Act.
(a) The Company agrees to file under the Securities Act as promptly
as practicable, but in any event within 90 days after the Closing Date, a
shelf registration statement providing for the registration of, and the
sale on a continuous or delayed basis by the Holders of, all of the
Registrable Securities pursuant to Rule 415 under the Securities Act or
any similar rule that may be adopted by the Commission; provided, that
such registration statement shall be an "automatic shelf registration
statement," as such term is defined in Rule 405 under the Securities Act,
if the Company is then eligible to use automatic shelf registration
statements. If the Shelf Registration Statement is not an automatic shelf
registration statement, the Company agrees to use its reasonable best
efforts to cause the Shelf Registration Statement to be declared effective
as promptly as possible, but in any event no later than 180 days after the
Closing Date. The Company agrees to use reasonable efforts to keep the
Shelf Registration Statement continuously effective until the earlier of
(i) the second anniversary of the Closing Date or (ii) such time as there
are no longer any Registrable Securities outstanding (the "Effective
Period"). None of the Company's securityholders (other than Holders of
Registrable Securities) shall have the right to include any of the
Company's securities in the Shelf Registration Statement.
(b) The Company further agrees that it shall cause the Shelf
Registration Statement, the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement, as of the time of sale of any Securities under such Shelf
Registration Statement, and as of the date of any such amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act; and (ii) not to contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein (in
the case of the Prospectus, in the light of the circumstances under which
they were made) not misleading, and the Company agrees to furnish to the
Holders of the Registrable Securities seeking to sell Securities pursuant
to such amendment or supplement, and to any other Holder upon such
Holder's request, copies of any supplement or amendment prior to its being
used or promptly following its filing with the Commission; provided,
however, that the Company shall have no obligation to deliver to the
Holders of the Registrable Securities copies of any amendment consisting
exclusively of an Exchange Act report or other Exchange Act filing
otherwise publicly available on the Company's website. If the Shelf
Registration Statement, as amended or supplemented from time to time,
ceases to be effective for any reason at any time during the Effective
Period (other than because all Registrable Securities registered
thereunder shall have been sold pursuant thereto or shall have otherwise
ceased to be Registrable Securities), the Company shall use its reasonable
best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof.
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(c) Each Holder of Registrable Securities agrees that if such Holder
wishes to sell Registrable Securities pursuant to the Shelf Registration
Statement and related Prospectus, it will do so only in accordance with
this Section 2(c) and with Section 3(b). From and after the date the Shelf
Registration Statement is initially effective, the Company shall, as
promptly as is practicable after the date a Notice and Questionnaire is
delivered, and in any event within the later of (x) fifteen (15) Business
Days after the date such Notice and Questionnaire is delivered, or (y) if
a Notice and Questionnaire is delivered during a Deferral Period, the
fifth Business Day after the expiration of such Deferral Period,
(i) file with the Commission a post-effective amendment to the
Shelf Registration Statement or prepare and file a supplement to the
related Prospectus or a supplement or amendment to any document
incorporated therein by reference or file any other required
document so that the Holder delivering such Notice and Questionnaire
is named as a selling security holder in the Shelf Registration
Statement and the related Prospectus in such a manner as to permit
such Holder to deliver such Prospectus to purchasers of the
Registrable Securities if required by applicable law and, if the
Company shall file a post-effective amendment to the Shelf
Registration Statement and such amendment is not automatically
effective, use its reasonable efforts to cause such post-effective
amendment to be declared effective under the Securities Act as
promptly as is practicable;
(ii) provide such Holder copies of any documents filed
pursuant to Section 2(c)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective
amendment filed pursuant to Section 2(c)(i);
provided that in no event shall the Company be required to make more than
one such filing during any 15 Business Day period and, in addition, if the
Shelf Registration Statement is not an automatic shelf registration
statement, the Company shall not be required to make more than one such
filing in any calendar quarter in the form of a post-effective amendment
to the Shelf Registration Statement; provided, further, that if such
Notice and Questionnaire is delivered during a Deferral Period, the
Company shall so inform the Holder delivering such Notice and
Questionnaire and shall take the actions set forth in clauses (i), (ii)
and (iii) above upon expiration of the Deferral Period in accordance with
Section 3(b). Notwithstanding anything contained herein to the contrary,
the Company shall be under no obligation to name any Holder that is not a
Notice Holder as a selling securityholder in any Shelf Registration
Statement or related Prospectus.
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(d) If any of the following events (any such event a "Registration
Default") shall occur, then additional interest (the "Additional
Interest") shall become payable by the Company to Holders in respect of
the Notes as follows:
(i) if the Shelf Registration Statement is not filed with the
Commission within 90 days following the Closing Date, then
commencing on the 91st day after the Closing Date, Additional
Interest shall accrue on the principal amount of the outstanding
Notes that are Registrable Securities at a rate of 0.25% per annum
for the first 90 days following such 91st day and at a rate of 0.5%
per annum thereafter; or
(ii) if the Shelf Registration Statement has not become or is
not declared effective by the Commission within 180 days following
the Closing Date, then commencing on the 181st day after the Closing
Date, Additional Interest shall accrue on the principal amount of
the outstanding Notes that are Registrable Securities at a rate of
0.25% per annum for the first 90 days following such 181st day and
at a rate of 0.5% per annum thereafter; or
(iii) if the Shelf Registration Statement has become or been
declared effective but such Shelf Registration Statement ceases to
be effective at any time during the Effective Period (other than
pursuant to Section 3(b) hereof), then commencing on the day such
Shelf Registration Statement ceases to be effective, Additional
Interest shall accrue on the principal amount of the outstanding
Notes that are Registrable Securities at a rate of 0.25% per annum
for the first 90 days following such date on which the Shelf
Registration Statement ceases to be effective and at a rate of 0.5%
per annum thereafter; or
(iv) if the aggregate duration of Deferral Periods in any
period exceeds the number of days permitted in respect of such
period pursuant to Section 3(b) hereof, then commencing on the day
the aggregate duration of Deferral Periods in any period exceeds the
number of days permitted in respect of such period (and again on the
first day of any subsequent Deferral Period during such period),
Additional Interest shall accrue on the principal amount of the
outstanding Notes that are Registrable Securities at a rate of 0.25%
per annum for the first 90 days and at a rate of 0.5% per annum
thereafter;
provided, however, that the Additional Interest rate on the Notes shall
not exceed in the aggregate 0.5% per annum and shall not be payable under
more than one clause above for any given period of time, except that if
Additional Interest would be payable under more than one clause above, but
at a rate of 0.25% per annum under one clause and at a rate of 0.5% per
annum under the other, then the Additional Interest rate shall be the
higher rate of 0.5% per annum; provided further, however, that (1) upon
the filing of the Shelf Registration Statement (in the case of clause (i)
above), (2) upon the effectiveness of the Shelf Registration Statement (in
the case of clause (ii) above), (3) upon the effectiveness
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of the Shelf Registration Statement which had ceased to remain effective
(in the case of clause (iii) above), (4) upon the termination of the
Deferral Period that caused the limit on the aggregate duration of
Deferral Periods in a period set forth in Section 3(b) to be exceeded (in
the case of clause (iv) above) or (5) upon the termination of certain
transfer restrictions on the Securities as a result of the application of
Rule 144(k) or any successor provision, Additional Interest on the Notes
as a result of such clause, as the case may be, shall cease to accrue;
provided, further that in no event will Additional Interest be payable in
connection with a Registration Default relating to a failure to register
the Class A common stock deliverable upon conversion of the Notes. For the
avoidance of doubt, if the Company fails to register both the Notes and
the Class A common stock deliverable upon conversion of the Notes, then
Additional Interest will be payable in connection with the Registration
Default relating to the failure to register the Notes.
Additional Interest on the Notes, if any, will be payable in cash on
March 15 and September 15 of each year (the "Additional Interest Payment
Date") to holders of record of outstanding Notes that are Registrable
Securities at the close of business on March 1 or September 1 (whether or
not a Business Day), as the case may be, immediately preceding the
relevant interest payment date, provided that any Additional Interest
accrued with respect to any Notes or portion thereof called for redemption
on a redemption date or converted into Shares on a conversion date prior
to the Registration Default shall, in any such event, be paid instead to
the Holder who submitted such Notes or portion thereof for redemption or
conversion on the applicable redemption date or conversion date, as the
case may be, on such date (or promptly following the conversion date, in
the case of conversion). Following the cure of all Registration Defaults
requiring the payment of Additional Interest to the Holders of Notes that
are Registrable Securities pursuant to this Section, the accrual of
Additional Interest will cease (without in any way limiting the effect of
any subsequent Registration Default requiring the payment of Additional
Interest).
The Company shall notify the Trustee immediately upon the happening
of each and every Registration Default. Notwithstanding the foregoing, the
parties agree that the sole monetary damages payable for a violation of
the terms of this Agreement with respect to which additional monetary
amounts are expressly provided shall be as set forth in this Section 2(d).
Nothing shall preclude a Notice Holder or Holder of Registrable Securities
from pursuing or obtaining specific performance or other equitable relief
with respect to this Agreement.
3. Registration Procedures.
The following provisions shall apply to the Shelf Registration Statement
filed pursuant to Section 2:
(a) The Company shall:
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(i) furnish to the Initial Purchasers copies of any Shelf
Registration Statement or Prospectus or any amendments or
supplements thereto proposed to be filed with the Commission
relating to the Registrable Securities within three (3) Business
Days prior to filing any such Shelf Registration Statement or
Prospectus or any amendments or supplements thereto with the
Commission;
(ii) use its reasonable efforts to prepare and file with the
Commission such amendments and post-effective amendments to the
Shelf Registration Statement and file with the Commission any other
required document as may be necessary to keep such Shelf
Registration Statement continuously effective until the expiration
of the Effective Period; use reasonable efforts to cause the related
Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act applicable to it
with respect to the disposition of all Securities covered by such
Shelf Registration Statement during the Effective Period in
accordance with the intended methods of disposition by the sellers
thereof set forth in such Shelf Registration Statement as so amended
or such Prospectus as so supplemented;
(iii) as promptly as practicable, notify the Notice Holders of
Registrable Securities (A) when such Shelf Registration Statement or
the Prospectus included therein or any amendment or supplement to
the Prospectus or post-effective amendment has been filed with the
Commission, and, with respect to such Shelf Registration Statement
or any post-effective amendment, when the same is declared or has
become effective, (B) of any request, following the effectiveness of
the Shelf Registration Statement, by the Commission or any other
Federal or state governmental authority for amendments or
supplements to the Shelf Registration Statement or related
Prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such
Shelf Registration Statement or the initiation or written threat of
any proceedings for that purpose, (D) of the receipt by the Company
of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or written threat of any proceeding
for such purpose, (E) of the occurrence of (but not the nature of or
details concerning) any event or the existence of any fact as a
result of which any Shelf Registration Statement shall contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, or any Prospectus shall contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which
they were made, not misleading (a "Material Event") (provided,
however, that no notice by the Company shall be required pursuant to
this clause (E) in the event that the Company either promptly files
a prospectus
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supplement to update the Prospectus or a Form 8-K or other
appropriate Exchange Act report that is incorporated by reference
into the Shelf Registration Statement, which, in either case,
contains the requisite information with respect to such Material
Event that results in such Shelf Registration Statement or
Prospectus, as the case may be, no longer containing any untrue
statement of material fact or omitting to state a material fact
necessary to make the statements contained therein, in the case of
the Prospectus, in light of the circumstances under which they were
made, not misleading), (F) of the determination by the Company that
a post-effective amendment to the Shelf Registration Statement will
be filed with the Commission, which notice may, at the discretion of
the Company (or as required pursuant to Section 3(b)), state that it
constitutes a Deferral Notice, in which event the provisions of
Section 3(b) shall apply or (G) at any time when a Prospectus is
required (or but for the exemption contained in Rule 172 would be
required) to be delivered under the Securities Act, that the Shelf
Registration Statement, Prospectus, or any amendment, supplement or
post-effective amendment thereto does not conform in all material
respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and the rules and regulations of the
Commission thereunder;
(iv) prior to any public offering of the Registrable
Securities pursuant to the Shelf Registration Statement, use its
reasonable best efforts to register or qualify, or cooperate with
the Notice Holders of Securities included therein in connection with
the registration or qualification of, such Securities for offer and
sale under the securities or blue sky laws of such jurisdictions as
any such Notice Holders reasonably requests in writing; prior to any
public offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use its reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective
during the Effective Period in connection with such Notice Holder's
offer and sale of Registrable Securities pursuant to such
registration or qualification (or exemption therefrom) and do any
and all other acts or things reasonably necessary or advisable to
enable the disposition in such jurisdictions of such Registrable
Securities in the manner set forth in the Shelf Registration
Statement and the related Prospectus; provided that the Company will
not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process or to taxation
in any such jurisdiction where it is not then so subject;
(v) use its reasonable best efforts to prevent the issuance
of, and if issued, to obtain the withdrawal of any order suspending
the effectiveness of the Shelf Registration Statement or any
post-effective amendment thereto, and to lift any suspension of the
qualification of any of the Registrable Securities for sale in any
jurisdiction in which they have been qualified for sale, in each
case at the earliest practicable date;
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(vi) upon reasonable notice, for a reasonable period prior to
the filing of the Shelf Registration Statement, and throughout the
Effective Period, (i) make reasonably available for inspection
during normal business hours by a representative of, and Special
Counsel acting for, Majority Holders of the Securities being sold,
all relevant financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries and
(ii) use reasonable best efforts to have their officers, directors,
employees, accountants and counsel supply all relevant information
reasonably requested by such representative or Special Counsel in
connection with such Shelf Registration Statement, in each case as
is customary for similar "due diligence" examinations; provided that
such persons shall first agree in writing with the Company that any
non-public information shall be kept confidential by such persons
and shall be used solely in connection with the exercise of rights
under this Agreement or in connection with such disposition, unless
(i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is
required by law, (iii) such information becomes generally available
to the public, other than as a result of a disclosure or failure to
safeguard by any such person in violation of any obligation
described herein or (iv) such information becomes available to any
such person from a source other than the Company and such source is
not shown to be bound by a confidentiality agreement with respect to
such information, and provided further that in connection with such
disposition, nothing in this Agreement shall (a) prevent such person
from complying with all applicable disclosure laws and regulations
in connection with such disposition, (b) restrict the ability of
such person to consider such information for due diligence purposes
or to share such information with other initial purchasers,
underwriters, agents, dealers, selling holders or similar
participants in such disposition, subject to the execution by such
other persons of reasonable non-disclosure agreements with the
Company, (c) prevent such persons from retaining documents or other
information in connection with their due diligence efforts or (d)
prevent such persons from using any such information in
investigating or defending themselves against claims made or
threatened by purchasers, regulatory authorities or others in
connection with such disposition. The foregoing inspection and
information gathering shall, to the greatest extent possible, be
coordinated on behalf of all the Notice Holders and the other
parties entitled thereto by Special Counsel. Any person legally
compelled to disclose any such confidential information made
available for inspection shall, to the extent not prohibited by law,
rule or regulation, provide the Company with prompt prior written
notice of such requirement so that the Company may seek a protective
order or other appropriate remedy;
(vii) if reasonably requested by the Initial Purchasers or any
Notice Holder, promptly incorporate in a prospectus supplement or
post-effective
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amendment to the Shelf Registration Statement such information as
the Initial Purchasers or such Notice Holder shall, on the basis of
a written opinion of nationally-recognized counsel experienced in
such matters, determine to be required to be included therein by
applicable law and make any required filings of such prospectus
supplement or such post-effective amendment; provided, that the
Company shall not be required to take any actions under this Section
3(a)(vii) that are not, in the reasonable opinion of counsel for the
Company, required under applicable law;
(viii) as promptly as practicable, furnish to each Notice
Holder and the Initial Purchasers, upon their request and without
charge, at least one (1) conformed copy of the Shelf Registration
Statement and any amendments thereto, including financial statements
but excluding schedules, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits; provided,
however, that the Company shall have no obligation to deliver to
Notice Holders or Initial Purchasers a copy of any amendment
consisting exclusively of an Exchange Act report or other Exchange
Act filing otherwise publicly available on the Company's website;
(ix) during the Effective Period, deliver to each Notice
Holder in connection with any sale of Registrable Securities
pursuant to the Shelf Registration Statement, without charge, as
many copies of the Prospectus relating to such Registrable
Securities (including each preliminary prospectus) and any amendment
or supplement thereto as such Notice Holder may reasonably request;
and the Company hereby consents (except during such periods that a
Deferral Notice is outstanding and has not been revoked) to the use
of such Prospectus or each amendment or supplement thereto by each
Notice Holder in connection with any offering and sale of the
Registrable Securities covered by such Prospectus or any amendment
or supplement thereto in the manner set forth therein;
(x) cooperate with the Notice Holders to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold pursuant to the Shelf Registration Statement
free of any restrictive legends and in such denominations as
permitted by the Indenture and registered in such names as the
Holders thereof may request in writing at least two business days
prior to sales of Securities pursuant to such Shelf Registration
Statement; and
(xi) not use, authorize the use of, refer to, or participate
in the planning for use of, any "free writing prospectus", as
defined in Rule 405 under the Securities Act, in connection with the
offering or sale of the Securities, without the consent of Holders
of Registrable Securities who are seeking to sell Securities
pursuant to the Shelf Registration Statement or relevant supplement
or amendment thereto.
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(b) Upon (A) the issuance by the Commission of a stop order suspending the
effectiveness of the Shelf Registration Statement or the initiation of
proceedings with respect to the Shelf Registration Statement under Section 8(d)
or 8(e) of the Securities Act, (B) the occurrence of or the existence of any
Material Event, or (C) the occurrence or existence of any corporate development
that, in the discretion of the Company, makes it appropriate to suspend the
availability of the Shelf Registration Statement and the related Prospectus, the
Company will (i) in the case of clause (B) above, subject to the next sentence
of this provision, as promptly as practicable prepare and file an amendment to
such Shelf Registration Statement or a supplement to the related Prospectus or
any document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Shelf Registration
Statement and Prospectus so that such Shelf Registration Statement does not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and such Prospectus does not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, as thereafter delivered or made
available to the purchasers of the Registrable Securities being sold thereunder,
and, in the case of a post-effective amendment to the Shelf Registration
Statement, subject to the next sentence of this provision, use reasonable
efforts to cause it to be declared effective as promptly as is practicable, and
(ii) give notice to the Notice Holders that the availability of the Shelf
Registration Statement is suspended (a "Deferral Notice"). The Company will use
its reasonable best efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as practicable, (y) in
the case of clause (B) above, as soon as, in the sole judgment of the Company,
public disclosure of such Material Event would not be prejudicial to or contrary
to the interests of the Company or, if necessary to avoid unreasonable burden or
expense, as soon as practicable thereafter and (z) in the case of clause (C)
above, as soon as, in the discretion of the Company, such suspension is no
longer appropriate; provided that the period during which the availability of
the Shelf Registration Statement and any Prospectus is suspended (the "Deferral
Period"), without the Company incurring any obligation to pay Additional
Interest pursuant to Section 2(d), shall not exceed one hundred and twenty (120)
days in the aggregate in any twelve (12) month period.
(c) Each Notice Holder agrees that upon receipt of any Deferral Notice
from the Company, such Notice Holder shall forthwith discontinue (and cause any
placement or sales agent acting on its behalf to discontinue) the disposition of
Registrable Securities pursuant to the Shelf Registration Statement until such
Notice Holder (i) shall have received copies of such amended or supplemented
Prospectus (including copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus) and, if so
directed by the Company, such Holder shall deliver to the Company (at the
Company's expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Registrable
13
Securities at the time of receipt of such notice or (ii) shall have received
notice from the Company that the disposition of Registrable Securities pursuant
to the Shelf Registration may continue.
(d) The Company may require each Holder of Registrable Securities as to
which any registration pursuant to Section 2(a) is being effected to furnish to
the Company such information regarding such Holder and such Holder's intended
method of distribution of such Registrable Securities as the Company may from
time to time reasonably request in writing, but only to the extent that such
information is required in order to comply with the Securities Act.
(e) The Company shall comply with all applicable rules and regulations of
the Commission and make generally available to its securityholders earning
statements (which need not be audited) satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such period
is a fiscal year) commencing on the first day of the first fiscal quarter of the
Company commencing after the effective date of the Shelf Registration Statement,
which statements shall cover said 12-month periods.
(f) The Company shall provide a CUSIP number for all Registrable
Securities covered by the Shelf Registration Statement not later than the
initial effective date of such Shelf Registration Statement and provide the
Trustee and the transfer agent for the Shares with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company.
(g) The Company shall use its reasonable efforts to provide such
information as is required for any filings required to be made with the National
Association of Securities Dealers, Inc.
(h) Until the expiration of two years after the Closing Date, the Company
will not, and will not permit any of its "affiliates" (as defined in Rule 144)
to, resell any of the Securities that have been reacquired by any of them except
pursuant to an effective registration statement under the Securities Act.
(i) The Company shall cause the Indenture to be qualified under the Trust
Indenture Act in a timely manner and shall enter into any necessary supplemental
indentures in connection therewith.
(j) The Company shall enter into such customary agreements and take all
such other reasonable and lawful actions in connection therewith (including
those requested by the Majority Holders of the Registrable Securities being
sold) in order to expedite or facilitate disposition of such Registrable
Securities.
14
4. Holder's Obligations.
(a) Each Holder agrees, by acquisition of the Registrable
Securities, that no Holder of Registrable Securities shall be entitled to
sell any of such Registrable Securities pursuant to the Shelf Registration
Statement or to receive a Prospectus relating thereto, unless such Holder
has furnished the Company with a Notice and Questionnaire as required
pursuant to Section 2(c) hereof (including the information required to be
included in such Notice and Questionnaire) and the information set forth
in the next sentence. Each Notice Holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information
previously furnished by such Notice Holder to the Company or of the
occurrence of any event in either case as a result of which any Prospectus
relating to such registration contains or would contain an untrue
statement of a material fact regarding such Notice Holder or such Notice
Holder's intended method of disposition of such Registrable Securities or
omits to state any material fact regarding such Notice Holder or such
Notice Holder's intended method of disposition of such Registrable
Securities required to be stated therein or necessary to make the
statements therein not misleading, and promptly to furnish to the Company
(i) any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall
not contain, with respect to such Notice Holder or the disposition of such
Registrable Securities, an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading and (ii) any other information
regarding such Notice Holder and the distribution of such Registrable
Securities as may be required to be disclosed in the Shelf Registration
Statement under applicable law or pursuant to Commission comments. Each
Holder further agrees not to sell any Registrable Securities pursuant to
the Shelf Registration Statement without delivering, causing to be
delivered, or, if permitted by applicable law, making available, a
Prospectus to the purchaser thereof and, following termination of the
Effective Period, to notify the Company, within 10 Business Days of a
request by the Company, of the amount of Registrable Securities sold
pursuant to the Shelf Registration Statement and, in the absence of a
response, the Company may assume that all of the Holder's Registrable
Securities were so sold.
(b) Any sale of any Registrable Securities by any Holder shall
constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to or provided by
such Holder or its plan of distribution and that such Prospectus does not
as of the time of such sale omit to state any material fact relating to or
provided by such Holder or its plan of distribution necessary to make the
statements in such Prospectus, in the light of the circumstances under
which they were made, not misleading. Each Holder further agrees that such
Holder will not make any offer relating to the Registrable Securities that
would constitute an "issuer free writing prospectus" (as defined in Rule
433 under the Securities Act) or that would otherwise constitute a "free
writing prospectus" (as defined in Rule 405 under the Securities Act)
required to be filed by the Company with the Commission or
15
retained by the Company under Rule 433 of the Securities Act, unless it
has obtained the prior written consent of the Company.
5. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid all fees and
expenses incident to the Company's performance of or compliance with this
Agreement, including, but not limited to, (a) all Commission and any NASD
registration and filing fees and expenses, (b) all fees and expenses in
connection with the qualification of the Securities for offering and sale under
the State securities and Blue Sky laws referred to in Section 3(a)(v) hereof,
including reasonable fees and disbursements of one counsel for the placement
agent, if any, in connection with such qualifications, (c) all expenses relating
to the preparation, printing, distribution and reproduction of the Shelf
Registration Statement, the related Prospectus, each amendment or supplement to
each of the foregoing, the certificates representing the Securities and all
other documents relating hereto, (d) fees and expenses of the Trustee under the
Indenture, any escrow agent or custodian, and of the registrar and transfer
agent for the Shares, (e) fees, disbursements and expenses of counsel and
independent certified public accountants of the Company (including the expenses
of any opinions or "cold comfort" letters required by or incident to such
performance and compliance) and (f) reasonable fees, disbursements and expenses
of one counsel for the Holders of Registrable Securities retained in connection
with the Shelf Registration Statement, as selected by the Company (unless
reasonably objected to by the Majority Holders of the Registrable Securities
being registered, in which case the Majority Holders shall select such counsel
for the Holders) ("Special Counsel"), and fees, expenses and disbursements of
any other Persons, including special experts, retained by the Company in
connection with such registration (collectively, the "Registration Expenses").
To the extent that any Registration Expenses are incurred, assumed or paid by
any Holder of Registrable Securities or any underwriter or placement agent
therefor, the Company shall reimburse such Person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a
documented request therefor. Notwithstanding the foregoing, the Holders of the
Registrable Securities being registered shall pay all underwriting discounts and
commissions and placement agent fees and brokers' and other commissions
attributable to the sale of such Registrable Securities and the fees and
disbursements of any counsel or other advisors or experts retained by such
Holders (severally or jointly), other than the counsel and experts specifically
referred to above.
6. Indemnification.
(a) The Company shall indemnify and hold harmless each Notice Holder
(including, without limitation, any such Initial Purchaser), its
affiliates, their respective officers, directors, employees,
representatives and agents, and each person, if any, who controls such
Notice Holder within the meaning of the Securities Act or the Exchange Act
(collectively referred to for purposes of this Section 6 and Section 7 as
an Indemnified Holder) from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
without limitation, any loss, claim,
16
damage, liability or action relating to purchases and sales of
Securities), to which that Indemnified Holder may become subject, whether
commenced or threatened, under the Securities Act, the Exchange Act, any
other federal or state statutory law or regulation, at common law or
otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any such Shelf Registration
Statement or any Prospectus forming part thereof, or (ii) the 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, and shall
reimburse each Indemnified Holder promptly upon demand for any legal or
other expenses reasonably incurred by that Indemnified Holder in
connection with investigating or defending or preparing to defend against
or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action
arises out of, or is based upon, an untrue statement or alleged untrue
statement in or omission or alleged omission from any of such documents in
reliance upon and in conformity with any information provided by such
Indemnified Holder in writing to the Company expressly for use therein.
This indemnity agreement shall be in addition to any liability that the
Company may otherwise have.
(b) Each Notice Holder shall indemnify and hold harmless the
Company, its officers, directors, employees, representatives and agents,
and each person, if any, who controls the Company within the meaning of
the Securities Act or the Exchange Act (collectively referred to for
purposes of this Section 6(b) and Section 7 as the Company), from and
against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company may become subject,
whether commenced or threatened, under the Securities Act, the Exchange
Act, any other federal or state statutory law or regulation, at common law
or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any such Shelf
Registration Statement or any Prospectus forming part thereof, or (ii) the
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,
but in each case only to the extent that the untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with any information furnished to the Company in writing
by such Notice Holder expressly for use therein, and shall reimburse the
Company for any legal or other expenses reasonably incurred by the Company
in connection with investigating or defending or preparing to defend
against or appearing as a third party witness in connection with any such
loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that no such Notice Holder shall be liable for any
indemnity claims hereunder in excess of the amount of net proceeds
received by such Notice Holder from the sale of Securities pursuant to
such Shelf Registration Statement. This indemnity
17
agreement will be in addition to any liability which any such Notice
Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party pursuant to Section 6(a) or 6(b), notify
the indemnifying party in writing of the claim or the commencement of that
action; provided, however, that the failure to notify the indemnifying
party shall not relieve it from any liability which it may have under this
Section 6 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 party shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Section 6. If any
such claim or action shall be brought against an indemnified party, and it
shall notify the indemnifying party thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume
the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified
party under this Section 6 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the defense thereof
other than the reasonable costs of investigation; provided, however, that
an indemnified party shall have the right to employ its own counsel in any
such action, but the fees, expenses and other charges of such counsel for
the indemnified party will be at the expense of such indemnified party
unless (1) the employment of counsel by the indemnified party has been
authorized in writing by the indemnifying party, (2) the indemnified party
has reasonably concluded (based upon advice of counsel to the indemnified
party) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based upon advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a reasonable
time after receiving notice of the commencement of the action, in each of
which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the reasonable fees, disbursements and other charges of more
than one separate firm of attorneys (in addition to any local counsel) at
any one time for all such indemnified party or parties. Each indemnified
party, as a condition of the indemnity agreements contained in Sections
6(a) and 6(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No
18
indemnifying party shall be liable for any settlement of any such action
effected without its written consent (which consent shall not be
unreasonably withheld), but if settled with its written consent or if
there be a final judgment for the plaintiff in any such action, the
indemnifying party agrees to indemnify and hold harmless any indemnified
party from and against any loss or liability by reason of such settlement
or judgment. 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
this section, 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 45 days after receipt by
such indemnifying party of a request in writing setting forth proposed
settlement terms from the indemnified party and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with
the aforesaid request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party (which consent shall not be unreasonably withheld),
effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could have been sought hereunder by such indemnified party, unless such
settlement (i) includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding and (ii) does not include a statement or admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) The provisions of this Section 6 and Section 7 shall remain in
full force and effect, regardless of any investigation made by or on
behalf of any Notice Holder, the Company, or any of the indemnified
Persons referred to in this Section 6 and Section 7, and shall survive the
sale by a Notice Holder of Securities covered by the Shelf Registration
Statement.
7. Contribution.
If the indemnification provided for in Section 6 is unavailable or
insufficient to hold harmless an indemnified party under Section 6(a) or 6(b),
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company from the offering and sale of the Notes, on the one
hand, and a Holder with respect to the sale by such Notice Holder of Securities,
on the other, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and such Notice Holder on the other with
respect to the statements or omissions that resulted in such loss, claim, damage
or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material
19
fact or the omission or alleged omission to state a material fact relates to the
Company or information supplied by the Company on the one hand or to any
information contained in the relevant Notice and Questionnaire supplied by such
Notice Holder on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Notice Holders' respective obligations to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Registrable Securities they have sold pursuant to the Shelf
Registration Statement and not joint.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 7 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section 7 shall be deemed
to include, for purposes of this Section 7, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending or preparing to defend any such action or claim. Notwithstanding
the provisions of this Section 7, an indemnifying party that is a Holder of
Securities shall not be required to contribute any amount in excess of the
amount by which the total price at which the Securities sold by such
indemnifying party to any purchaser exceeds the amount of any damages which such
indemnifying party has otherwise paid or become liable to pay by reason of any
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.
8. Information Requirements.
The Company covenants that, if at any time before the end of the Effective
Period the Company is not subject to the reporting requirements of the Exchange
Act, it will cooperate with any Holder and take such further action as any
Holder may reasonably request in writing (including, without limitation, making
such representations as any such Holder may reasonably request), all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 and Rule 144A under the Securities Act
and customarily taken in connection with sales pursuant to such exemptions. Upon
the written request of any Holder, the Company shall deliver to such Holder a
written statement as to whether it has complied with such filing requirements,
unless such a statement has been included in the Company's most recent report
filed pursuant to Section 13 or Section 15(d) of Exchange Act. Notwithstanding
the foregoing, nothing in this Section 8 shall be deemed to require the Company
to register any of its securities under any section of the Exchange Act.
20
9. Miscellaneous.
(a) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, unless the Company
has obtained the written consent of Majority Holders. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders
whose Registrable Securities are being sold pursuant to the Shelf
Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of a majority in aggregate
amount of the Registrable Securities being sold by such Holders pursuant
to the Shelf Registration Statement. Notwithstanding the foregoing
sentence, (i) this Agreement may be amended by written agreement signed by
the Company and the Initial Purchasers, without the consent of the Holders
of Registrable Securities, to cure any ambiguity or to correct or
supplement any provision contained herein that may be defective or
inconsistent with any other provision contained herein, or to make such
other provisions in regard to matters or questions arising under this
Agreement that shall not adversely affect the interests of the Holders of
Registrable Securities. Each Holder of Registrable Securities outstanding
at the time of any such amendment, modification, supplement, waiver or
consent or thereafter shall be bound by any such amendment, modification,
supplement, waiver or consent effected pursuant to this Section 8(a),
whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable
Securities or is delivered to such Holder.
(b) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telecopier or air courier guaranteeing next-day delivery:
(1) If to the Company, initially at the address set forth in
the Purchase Agreement;
(2) If to the Initial Purchasers, initially at their
respective addresses set forth in the Purchase Agreement; and
(3) If to a Holder, to the address of such Holder set forth in
the security register, the Notice and Questionnaire or other records
of the Company.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail, if being delivered by first-class mail; and when receipt
is acknowledged by the recipient's telecopier machine, if sent by telecopier.
(c) Successors And Assigns. Any person who purchases any Registrable
Securities from the Initial Purchasers shall be deemed, for purposes of
this Agreement, to be an
21
assignee of the Initial Purchasers. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities, 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 Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement,
and by taking and holding such Registrable Securities, such person shall
be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such person shall be
entitled to receive the benefits hereof.
(d) Counterparts. This Agreement may be executed in any number of
counterparts (which may be delivered in original form or by telecopier)
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.
(e) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
(g) Remedies. In the event of a breach by the Company or by any
Holder of any of their respective obligations under this Agreement, each
Holder or the Company, as the case may be, in addition to being entitled
to exercise all rights granted by law, including recovery of damages
(other than the recovery of damages for a breach by the Company of its
obligations under Section 2 hereof for which Additional Interest have been
paid pursuant to Section 3 hereof), will be entitled to specific
performance of its rights under this Agreement. The Company and each
Holder agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of any of the provisions of
this Agreement and hereby further agree that, in the event of any action
for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(h) No Inconsistent Agreements. The Company represents, warrants and
agrees that it has not entered into, and shall not on or after the date of
this Agreement enter into, any agreement that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts
with the provisions hereof.
(i) Severability. The remedies provided herein are cumulative and
not exclusive of any remedies provided by law. If any term, provision,
covenant or restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their reasonable
best efforts to find and employ an alternative means
22
to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated
and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions
without including any term, provision, covenant or restriction that may be
hereafter declared invalid, illegal, void or unenforceable.
(j) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in this
Agreement or made pursuant hereto shall remain in full force and effect
regardless of any investigation (or statement as to the results thereof)
made by or on behalf of any Holder of Registrable Securities, any
director, officer or partner of such Holder, any agent or underwriter or
any director, officer or partner thereof, or any controlling person of any
of the foregoing, and shall survive delivery of and payment for the
Registrable Securities pursuant to the Purchase Agreement and the transfer
and registration of Registrable Securities by such Holder.
(k) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of Registrable Securities is
required hereunder, such Securities held by the Company or its affiliates
(other than subsequent Holders of Securities if such subsequent Holders
are deemed to be affiliates solely by reason of their holdings of such
Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effective Period, except for
any liabilities or obligations under Sections 3(e), 3(h), 4, 5, 6 and 7
hereof and the obligations to make payments of and provide for Additional
Interest under Section 2(d) hereof to the extent such damages accrue prior
to the end of the Effective Period, each of which shall remain in effect
in accordance with its terms.
23
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 among the Company and the several
Initial Purchasers in accordance with its terms.
Very truly yours,
ALBANY INTERNATIONAL CORP.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxx
Title: Corporate Treasurer
Accepted: March 13, 2006
By: X.X. XXXXXX SECURITIES INC.
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Authorized Signatory
By: BANC OF AMERICA SECURITIES LLC
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Authorized Signatory
24
