REGISTRATION RIGHTS AGREEMENT Dated as of April 7, 2011 by and among PARK-OHIO INDUSTRIES, INC. THE GUARANTORS LISTED ON SCHEDULE I HERETO and BARCLAYS CAPITAL INC. J.P. MORGAN SECURITIES LLC
Execution Version
Dated as of April 7, 2011
by and among
by and among
PARK-OHIO INDUSTRIES, INC.
THE GUARANTORS LISTED ON SCHEDULE I HERETO
THE GUARANTORS LISTED ON SCHEDULE I HERETO
and
BARCLAYS CAPITAL INC.
X.X. XXXXXX SECURITIES LLC
X.X. XXXXXX SECURITIES LLC
This Registration Rights Agreement (this “Agreement”) is made and entered into as of April 7,
2011, by and among Park-Ohio Industries, Inc., an Ohio corporation (the “Company”), the guarantors
listed on Schedule I hereto (the “Guarantors”) and Barclays Capital Inc. and X.X. Xxxxxx Securities
LLC, as representatives of the several initial purchasers named in Schedule I attached to the
Purchase Agreement (as defined below) (each such initial purchaser, an “Initial Purchaser” and,
together, the “Initial Purchasers”), each of whom has agreed to purchase the Company’s 8.125%
Senior Notes due 2021 (the “Initial Notes”) pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March 31, 2011 (the “Purchase
Agreement”), by and among the Company, the Guarantors and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Initial Notes, the Company and the Guarantors have
agreed to provide the registration rights set forth in this Agreement. The execution and delivery
of this Agreement is a condition to the obligations of the Initial Purchasers set forth in Section
7 of the Purchase Agreement. Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Indenture, dated as of April 7, 2011, among the Company, the
Guarantors and Xxxxx Fargo Bank, National Association, as trustee, relating to the Initial Notes
and the Exchange Notes (the “Indenture”).
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.
Affiliate: As defined in Rule 144 of the Act.
Blackout Period: The period of time (a) that the Company and the Guarantors may delay filing
and distributing (i) a post-effective amendment to (x) the Shelf Registration Statement or (y)
after the date on which the Exchange Offer is Consummated, the Exchange Offer Registration
Statement that is required to be effective to permit resales of Series B Notes by Broker-Dealers as
contemplated by Section 3(c) below or (ii) a supplement to any related Prospectus and (iii) any
other required document so that, as thereafter delivered to Holders or purchasers of Transfer
Restricted Securities, the prospectus will not contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not misleading if the Company
determines reasonably and in good faith that compliance with the disclosure obligations necessary
to maintain the effectiveness of the Shelf Registration Statement or the Exchange Offer
Registration Statement at such time could reasonably be expected to have a material adverse effect
on the Company, any of the Guarantors or a pending financing, acquisition, disposition, merger or
other material corporate transaction involving the Company or any of its subsidiaries, or (b) when
(i) the Shelf Registration Statement or (ii) after the date on which the Exchange Offer is
Consummated, the Exchange Offer Registration Statement that is
required to remain effective to permit resales of Exchange Notes by Broker-Dealers as
contemplated by Section 3(c) below, in each case, ceases to be effective or any related Prospectus
is not usable solely because the Company filed a post-effective amendment to any such Registration
Statement to include annual audited financial information or quarterly unaudited financial
information with respect to the Company and the Guarantors and such post-effective amendment is not
yet effective and needs to be declared effective to permit Holders to use the related Prospectus
(it being understood that, in the case of this clause (b), the Company and the Guarantors shall be
required to use their commercially reasonable efforts to cause any such post-effective amendment to
become effective as soon as practicable); provided that, during any consecutive twelve-month
period, such Blackout Periods shall not occur more than 60 days in the aggregate; and provided
further that upon the termination of such Blackout Period, the Company and the Guarantors shall
promptly advise each Holder and purchaser and, if requested by any such Person, confirm such advice
in writing that such Blackout Period has been terminated.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, a Sunday or a day on which banking institutions
in the City of New York or at a place of payment are authorized by law, regulation or executive
order to remain closed.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (a) the filing and effectiveness under the Act of the Exchange Offer
Registration Statement relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective and the keeping of
the Exchange Offer open for a period not less than the period required pursuant to Section 3(b)
hereof, and (c) the delivery by the Company to the Registrar under the Indenture of Exchange Notes
in the same aggregate principal amount as the aggregate principal amount of Initial Notes validly
tendered and not withdrawn by Holders thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission promulgated thereunder.
Exchange Notes: The Company’s 8.125% Senior Notes due 2021 to be issued pursuant to the
Indenture: (i) in the Exchange Offer or (ii) as contemplated by Section 4 hereof.
Exchange Offer: The exchange and issuance by the Company of a principal amount of Exchange
Notes (which shall be registered pursuant to the Exchange Offer Registration
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Statement) equal to the outstanding principal amount of Initial Notes that are validly
tendered and not withdrawn by such Holders in connection with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus that forms a part thereof.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Free Writing Prospectus: Each offer to sell or solicitation of an offer to buy the Initial
Notes or the Exchange Notes that would constitute a “free writing prospectus” as defined in Rule
405 under the Securities Act, prepared by or on behalf of the Company or used or referred to by the
Company in connection with the sale of the Initial Notes or the Exchange Notes.
Holders: As defined in Section 2 hereof.
Interest Payment Date: As defined in the Initial Notes and Exchange Notes.
Person: An individual, trustee, corporation, partnership, limited liability company, joint
stock company, trust, unincorporated association, union, business association, firm or other legal
entity.
Prospectus: The prospectus included in a Registration Statement at the time such Registration
Statement is declared effective, as amended or supplemented by any prospectus supplement and by all
other amendments thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company and the Guarantors, if any,
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the registration
for resale of Transfer Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement, (ii) including the Prospectus
included therein, and (iii) including all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by reference therein.
Rule 144: Rule 144 promulgated under the Act.
Shelf Registration Statement: As defined in Section 4 hereof.
Special Interest: As defined is Section 5 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as in effect on the
date of the Indenture.
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Transfer Restricted Securities: Each Initial Note and the related Subsidiary Guarantee until
the earliest to occur of (a) the date on which such Initial Note has been exchanged in the Exchange
Offer by a Holder other than a Broker-Dealer for an Exchange Note, (b) following the exchange by a
Broker-Dealer in the Exchange Offer of an Initial Note for an Exchange Note, the date on which such
Exchange Note is sold to a purchaser who receives from such Broker-Dealer on or prior to the date
of such sale a copy of the Prospectus contained in the Exchange Offer Registration Statement, (c)
the date on which such Initial Note has been effectively registered under the Act and disposed of
in accordance with the Shelf Registration Statement (and the purchasers thereof have been issued
Exchange Notes), (d) the date on which such Initial Note is distributed to the public pursuant to
Rule 144 or (e) the date on which such security ceases to be outstanding pursuant to the terms of
Indenture.
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities (each, a “Holder”)
whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) The Company and the Guarantors shall (i) cause the Exchange Offer Registration Statement
to be filed with the Commission within 150 days after the Closing Date (such date being the “Filing
Deadline”), (ii) use all commercially reasonable efforts to cause such Exchange Offer Registration
Statement to become effective within 210 days after the Closing Date (such 210th day being the
“Effectiveness Deadline”), (iii) in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such Exchange Offer
Registration Statement, and (C) cause all necessary filings, if any, in connection with the
registration and qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and (iv) unless the
Exchange Offer shall not be permitted by applicable federal law or Commission policy (after the
procedures set forth in Section 6(a)(i) below have been complied with), upon the effectiveness of
such Exchange Offer Registration Statement, commence and Consummate the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting (i) registration of the Exchange Notes
to be offered in exchange for the Initial Notes that are Transfer Restricted Securities and (ii)
resales of Exchange Notes by Broker-Dealers that tendered into the Exchange Offer Initial Notes
that such Broker-Dealer acquired for its own account as a result of market-making activities or
other trading activities (other than Initial Notes acquired directly from the Company or any of its
Affiliates) as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall use all commercially reasonable efforts to cause the
Exchange Offer Registration Statement to be effective continuously, and shall keep the Exchange
Offer open for a period of not less than the minimum period required under applicable federal and
state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 20 Business Days. The Company and the Guarantors shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No securities other than
the Exchange Notes shall be included in the Exchange Offer
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Registration Statement. The Company and the Guarantors shall use all commercially reasonable
efforts to cause the Exchange Offer to be Consummated on or prior to 30 Business Days, or longer,
if required by the federal securities laws, after the date on which the Exchange Offer Registration
Statement is declared effective by the Commission (such 30th Business Day, or such later date
required by the federal securities laws, being the “Consummation Deadline”).
(c) The Company shall include a “Plan of Distribution” section in the Prospectus contained in
the Exchange Offer Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such Broker-Dealer as a result
of market-making activities or other trading activities (other than Initial Notes acquired directly
from the Company or any Affiliate of the Company), may exchange such Transfer Restricted Securities
pursuant to the Exchange Offer. Such “Plan of Distribution” section shall also contain all other
information with respect to such sales by such Broker-Dealers that the Commission may require in
order to permit such sales pursuant thereto, but such “Plan of Distribution” shall not name any
such Broker-Dealer or disclose the amount of Transfer Restricted Securities held by any such
Broker-Dealer, except to the extent required by the Commission.
Because such Broker-Dealer may be deemed to be an “underwriter” within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in connection with
its initial sale of any Exchange Notes received by such Broker-Dealer in the Exchange Offer, the
Company and Guarantors shall permit the use of the Prospectus contained in the Exchange Offer
Registration Statement by such Broker-Dealer to satisfy such prospectus delivery requirement. To
the extent necessary to ensure that the Prospectus contained in the Exchange Offer Registration
Statement is available for sales of Exchange Notes by Broker-Dealers, the Company and the
Guarantors agree to use their commercially reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented, amended and current as required by and
subject to the provisions of Sections 6(a) and (c) hereof and subject to the applicable Blackout
Period and in conformity with the requirements of this Agreement, the Act and the policies, rules
and regulations of the Commission as announced from time to time, for a period that shall not
exceed 180 days from the Consummation Deadline or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been sold pursuant
thereto; provided, however, that if the Exchange Offer Registration Statement ceases to be
effective during any Blackout Period, such 180 period shall be extended by the number of days such
Blackout Period continued. The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than two Business Days after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not permitted to
Consummate the Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the Company and the Guarantors have complied with the procedures set forth
in Section 6(a)(i) below) or (ii) any Holder of the Transfer Restricted Securities notifies the
Company prior to the 20th Business Day following Consummation of the Exchange Offer that (A) such
Holder is prohibited by law or Commission policy from
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participating in the Exchange Offer, (B) such Holder may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder or (C) such Holder is a Broker-Dealer and holds Initial Notes
acquired directly from the Company or any of its Affiliates, then the Company and the Guarantors,
shall:
(x) use all commercially reasonable efforts on or prior to 60 days after the earlier of (i)
the date as of which the Company determines that the Exchange Offer Registration Statement will not
be or cannot be, as the case may be, filed as a result of clause (a)(i) above and (ii) the date on
which the Company receives the notice specified in clause (a)(ii) above (the date on which such
filing obligations arises being the “Shelf Filing Deadline”), to file a shelf registration
statement pursuant to Rule 415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the “Shelf Registration Statement”)), covering the resale of all Transfer
Restricted Securities; provided, however, that nothing in this Section 4(a) shall require the
Company and the Guarantors to file a Shelf Registration Statement prior to the Filing Deadline for
an Exchange Offer Registrations Statement, and
(y) use all commercially reasonable efforts to cause such Shelf Registration Statement to be
declared effective by the Commission on or prior to 120 days after the Shelf Filing Deadline for
the Shelf Registration Statement, or such later dates on which the Exchange Offer Registration
Statement would have been required to be filed or declared effective, as the case may be, (such
date being the “Shelf Effectiveness Deadline”).
If, after the Company and the Guarantors have filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) above, the Company and the Guarantors are required
to file and make effective a Shelf Registration Statement solely because the Exchange Offer is not
permitted under applicable federal law (i.e., clause (a)(i)(B) above), then the filing of the
Exchange Offer Registration Statement shall be deemed to satisfy the requirements of clause (x)
above; provided that, in such event, the Company and the Guarantors shall remain obligated to meet
the Shelf Effectiveness Deadline set forth in clause (y).
To the extent necessary to ensure that the Shelf Registration Statement is available for sales
of Transfer Restricted Securities by the Holders thereof entitled to the benefit of this Section
4(a) and the other securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors shall use their commercially reasonable efforts to keep any
Shelf Registration Statement required by this Section 4(a) continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections 6(b) and 6(c) hereof
and subject to any Blackout Period and in conformity with the requirements of this Agreement, the
Act and the policies, rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i) or 6(d)) following the
Closing Date, or such shorter period as will terminate when all Transfer Restricted Securities
covered by such Shelf Registration Statement have been sold pursuant thereto or are no longer
Transfer Restricted Securities; provided, however, that, except as provided below, the Company and
the Guarantors shall not be obligated to keep such Shelf Registration Statement effective for a
period of more than 180 days from the date the Shelf Registration Statement is declared effective
by the Commission if the Shelf Registration Statement is required to be filed solely to permit
resales by a Broker-Dealer that holds the Initial
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Notes or the Exchange Notes acquired directly from the Company or one of its Affiliates;
provided, further, however, that if the Shelf Registration Statement ceases to be effective during
any Blackout Period, such 180 day period shall be extended by the number of days such Blackout
Period continued.
(b) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder furnishes to the
Company in writing, within 15 days after receipt of a request therefor, the information specified
in Item 507 or 508 of Regulation S-K, as applicable, of the Act, or other information reasonably
requested by the Company and required by Regulation S-K of the Act, for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. No Holder
shall be entitled to Special Interest pursuant to Section 5 hereof unless and until such Holder
shall have provided all such information. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading and shall promptly supply such
other information as the Company may from time to time reasonably request.
SECTION 5. SPECIAL INTEREST
If (i) the Company and the Guarantors fail to use commercially reasonable efforts to file any
Registration Statement required by this Agreement on or prior to the applicable Filing Deadline,
(ii) any such Registration Statement has not been declared effective by the Commission on or prior
to the applicable Effectiveness Deadline, (iii) both (A) the Exchange Offer has not been
Consummated on or prior to the Consummation Deadline and (B) the Shelf Registration Statement has
not been declared effective by the Commission after the Shelf Effectiveness Deadline, or (iv) any
Registration Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose without being
succeeded within five business days by a post-effective amendment to such Registration Statement
that cures such failure and that is itself declared effective within ten days of filing such
post-effective amendment to such Registration Statement (except during any Blackout Period (each
such event referred to in clauses (i) through (iv), a “Registration Default”), then the Company and
the Guarantors hereby jointly and severally agree to pay to each Holder affected thereby Special
Interest in an amount equal to 0.25% per annum of the principal amount of Transfer Restricted
Securities held by such Holder for the first 90-day period immediately following the occurrence of
such Registration Default. The amount of the Special Interest shall increase by an additional
0.25% per annum of the principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to a maximum amount of
Special Interest of 1.0% per annum of the principal amount of Transfer Restricted Securities;
provided that the Company and the Guarantors shall in no event be required to pay Special Interest
for more than one Registration Default at any given time. Notwithstanding anything to the contrary
set forth herein, (1) upon filing of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of clause (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of clause (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of clause (iii)
7
above, or (4) upon the filing of a post-effective amendment to the Registration Statement or
an additional Registration Statement that causes the Exchange Offer Registration Statement (and/or,
if applicable, the Shelf Registration Statement) to again be declared effective or made usable in
the case of clause (iv) above, the Special Interest payable with respect to the Transfer Restricted
Securities as a result of such clause (i), (ii), (iii), or (iv), as applicable, shall cease.
All accrued Special Interest shall be paid by the Company and the Guarantors to the Holders
entitled thereto, in the manner provided for the payment of interest in the Indenture, on each
Interest Payment Date, as more fully set forth in the Indenture, the Initial Notes and the Exchange
Notes. Notwithstanding the fact that any securities for which Special Interest are due cease to be
Transfer Restricted Securities, all obligations of the Company and the Guarantors to pay Special
Interest with respect to securities that accrued prior to the time that such securities ceased to
be Transfer Restricted Securities shall survive until such time as such obligations with respect to
such securities shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the
Company and the Guarantors shall (x) comply with all applicable provisions of Section 6(c) below,
(y) use their respective commercially reasonable efforts to effect such exchange and to permit the
resale of Exchange Notes by Broker-Dealers that tendered in the Exchange Offer Initial Notes that
such Broker-Dealer acquired for its own account as a result of its market-making activities or
other trading activities (other than Initial Notes acquired directly from the Company or any of its
Affiliates) being sold in accordance with the intended method or methods of distribution thereof,
and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been announced a change in Commission
policy with respect to exchange offers such as the Exchange Offer, that in the reasonable
opinion of counsel to the Company raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Company and the Guarantors hereby agree
either to (x) seek a no-action letter or other favorable decision from the Commission
allowing the Company and the Guarantors to Consummate an Exchange Offer for such Transfer
Restricted Securities, or (y) file, in accordance with Section 4(a) hereof, a Shelf
Registration Statement to permit the registration and/or resale of the Transfer Restricted
Securities that would otherwise be covered by the Exchange Offer Registration Statement but
for the announcement of a change in Commission policy. In the case of clause (x) above, the
Company and the Guarantors hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take action not commercially reasonable
to affect a change of Commission policy. In connection with the foregoing, the Company and
the Guarantors hereby agree to take all such other reasonable actions as may be requested by
the Commission or otherwise required in connection with the issuance of such decision,
including without limitation (A) participating in telephonic conferences with the Commission
staff, (B) delivering to the Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has concluded that such an
Exchange Offer should be permitted, and (C) diligently pursuing a resolution (which need not
be favorable) by the Commission staff.
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(ii) As a condition to its participation in the Exchange Offer, each Holder (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish, upon the request of
the Company, prior to the Consummation of the Exchange Offer, a written representation to
the Company and the Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not
an Affiliate of the Company, (B) it is not engaged in, and does not intend to engage in, and
has no arrangement or understanding with any Person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer, (C) it is acquiring the Exchange Notes in
its ordinary course of business, and (D) only if such Holder is a Broker-Dealer that will
receive Exchange Notes in exchange for Initial Notes that such Broker-Dealer acquired for
its own private account as a result of market making or other trading activities, it will
deliver a Prospectus, as required by law, in connection with any sale of such Exchange
Notes. As a condition to its participation in the Exchange Offer each Holder using the
Exchange Offer to participate in a distribution of the Exchange Notes shall acknowledge and
agree that, if the resales are of Exchange Notes obtained by such Holder in exchange for
Initial Notes acquired directly from the Company or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of this Agreement, rely on the position of
the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991)
and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in
the Commission’s letter to Shearman & Sterling dated July 2, 1993, and similar
no-action letters (including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration Statement, the Company
and the Guarantors shall provide a supplemental letter to the Commission (A) stating that
the Company and the Guarantors are registering the Exchange Offer in reliance on the
position of the Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June 5, 1991) as
interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993,
and, if applicable, any no-action letter obtained pursuant to clause (i) above, (B)
including a representation that the Company and Guarantors have not entered into any
arrangement or understanding with any Person to distribute the Exchange Notes to be received
in the Exchange Offer and that, to the best of the Company’s and each Guarantor’s
information and belief, each Holder participating in the Exchange Offer is acquiring the
Exchange Notes in its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange Notes received in the
Exchange Offer, and (C) any other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf Registration Statement,
the Company and the Guarantors shall:
9
(i) comply with all the provisions of Section 6(c) below and use all commercially
reasonable efforts to effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of distribution
thereof (as indicated in the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company and the Guarantors will prepare and file with the
Commission a Registration Statement relating to the registration on any appropriate form
under the Act, which form shall be available for the sale of the Transfer Restricted
Securities in accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof, and
(ii) issue to any Holder or purchaser of Initial Notes covered by any Shelf
Registration Statement contemplated by this Agreement, upon the request of any such Holder
or purchaser, registered Initial Notes having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes in the names as such Holder or purchaser shall
designate.
(c) General Provisions. In connection with any Registration Statement and any related
Prospectus required by this Agreement, the Company and the Guarantors shall:
(i) use their commercially reasonable efforts to keep such Registration Statement
continuously effective (subject to any applicable Blackout Period) and provide all requisite
financial statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain an untrue statement of material
fact or omit to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were made, not
misleading, or (B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company and the Guarantors
shall file promptly an appropriate amendment to such Registration Statement curing such
defect, and, if Commission review is required, use their respective commercially reasonable
efforts to cause such amendment to be declared effective as soon as practicable (but no
sooner than after the end of any Blackout Period, if applicable);
(ii) prepare and file with the Commission such amendments and post-effective amendments
to the applicable Registration Statement as may be necessary to keep such Registration
Statement effective for the applicable period set forth in Section 3 or 4 hereof, as the
case may be; cause the Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully
with Rules 424, 430A, and 462, as applicable, under the Act in a timely manner; and comply
with the provisions of the Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
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(iii) advise (a) each Holder whose Transfer Restricted Securities have been included in
a Shelf Registration Statement (in the case of a Shelf Registration Statement), and (b) each
Holder who has provided notice to the Company promptly as practicable and, if requested by
such Holder, confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to any applicable
Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, and (D) of the happening of any event that requires the Company to make
changes in the Registration Statement or the Prospectus in order that the Registration
Statement or the Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein do not contain an untrue statement of material fact nor
omit to state a material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the circumstances under which
they were made) not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Company and the Guarantors shall use all commercially reasonable
efforts to obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) subject to Section 6(d), if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-effective amendment, as
applicable, to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter delivered to
the purchasers of Transfer Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading;
(v) furnish to each Holder whose Transfer Restricted Securities have been included in a
Shelf Registration Statement in connection with such exchange, registration or sale, if any,
before filing with the Commission (provided, that such Holder has entered into a
confidentiality agreement as may be reasonable requested by the Company), copies of any
Registration Statement or any Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus, which documents will be subject to the
reasonable review and comment of such Holders in connection with such sale, if any, for a
period of at least three Business Days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration Statement or
Prospectus to which such Holders shall reasonably object within three Business Days after
the receipt thereof. A Holder shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus
11
or supplement, as applicable, as proposed to be filed, contains an untrue statement of
a material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading or fails to comply with the applicable requirements of the Act;
(vi) make available, at reasonable times, for inspection by each Holder whose Transfer
Restricted Securities have been included in a Shelf Registration Statement and any attorney
or accountant retained by such Holders (provided that there shall be not more than one
attorney and not more than one accountant retained by all such Holders for this purpose),
all financial and other records, pertinent corporate documents of the Company and the
Guarantors reasonably requested and cause the Company’s and the Guarantors’ officers,
directors and employees to supply all information reasonably requested by any such Holder,
attorney or accountant in connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its effectiveness; provided
that any Holder or representative thereof requesting or receiving such information shall
agree to be bound by reasonable confidentiality agreements and procedures with respect
thereto;
(vii) if requested by any Holders whose Transfer Restricted Securities have been
included in a Shelf Registration Statement in connection with such exchange, registration or
sale, promptly include in any Registration Statement or Prospectus, pursuant to a supplement
or post-effective amendment if necessary, such information as such Holders may reasonably
request to have included therein, including, without limitation, information relating to the
“Plan of Distribution” of the Transfer Restricted Securities and the use of the Registration
Statement or Prospectus for market making activities; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as practicable after the Company
is notified of the matters to be included in such Prospectus supplement or post-effective
amendment;
(viii) furnish to each Holder whose Transfer Restricted Securities have been included
in a Shelf Registration Statement in connection with such exchange, registration or sale,
without charge, at least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all exhibits;
(ix) deliver to each Holder whose Transfer Restricted Securities have been included in
a Shelf Registration Statement without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplement thereto as such Holders
reasonably may request; the Company and the Guarantors hereby consent to the use (in
accordance with law and subject to Section 6(d) hereof) of the Prospectus and any amendment
or supplement thereto by each selling Holder in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any amendment or supplement
thereto;
(x) enter into such agreements (including an underwriting agreement), and make such
representations and warranties, and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement, all to
12
such extent as may be customarily and reasonably requested by the Initial Purchasers
or, in the case of registration for resale of Transfer Restricted Securities pursuant to the
Shelf Registration Statement, by any Holder or Holders of Transfer Restricted Securities who
hold at least 50% in aggregate principal amount of such class of Transfer Restricted
Securities; provided, that, the Company and the Guarantors shall not be required to enter
into any such agreement more than once with respect to all of the Transfer Restricted
Securities and, in the case of a Shelf Registration Statement, may delay entering into such
agreement if the Board of Directors of the Company determines in good faith that it is in
the best interests of the Company and the Guarantors not to disclose the existence of or
facts surrounding any proposed or pending material corporate transaction involving the
Company and the Guarantors. In such connection, the Company and the Guarantors shall:
(A) upon the request of any Holder, furnish (or in the case of paragraphs (2)
and (3), use its commercially reasonable efforts to cause to be furnished) to each
such Holder (in the case of the Shelf Registration Statement) and any underwriter,
upon Consummation of the Exchange Offer or the effectiveness of the Shelf
Registration Statement, as the case may be:
(1) a certificate, dated such date, signed on behalf of the Company and
each Guarantor by (x) the Chief Executive Officer or any Vice President, and
(y) a principal financial or accounting officer of the Company and such
Guarantor, confirming, as of the date thereof, such matters as such Holders
may reasonably request;
(2) an opinion, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case
may be, of counsel for the Company and the Guarantors in customary form and
covering such other matters as such Holder may reasonably request, and in
any event including a statement to the effect that such counsel has
participated in conferences with officers and other representatives of the
Company and the Guarantors and representatives of the independent public
accountants for the Company and the Guarantors and representatives of the
underwriters, if any, and their counsel at which the contents of the
Registration Statement and related matters were discussed and, although such
counsel need not pass upon or assume responsibility for the accuracy,
completeness or fairness of such statements (relying as to materiality to
the extent such counsel deems appropriate upon the statements of officers
and other representatives of the Company and the Guarantors and without
independent check or verification), no facts came to such counsel’s
attention that caused such counsel to believe that the applicable
Registration Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective and, in the case of the
Exchange Offer Registration Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
13
make the statements therein, in light of the circumstances under which
they were made, not misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the case of the opinion dated
the date of Consummation of the Exchange Offer, as of the date of
Consummation, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Such counsel may state further that such counsel assumes no responsibility
for, and has not independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules or other financial
data included in any Registration Statement contemplated by this Agreement
or the related Prospectus and need express no view as to the accounting or
financial records from which such financial statements, schedules and data
are derived; and
(3) a customary comfort letter, dated the date of Consummation of the
Exchange Offer, or as of the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company’s independent accountants,
in the customary form and covering matters of the type customarily covered
in comfort letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort letters
delivered pursuant to Section 8(e) of the Purchase Agreement; and
(B) deliver such other documents and certificates as may be reasonably
requested by the selling Holders to evidence compliance with the matters covered in
clause (A) above and with any customary conditions contained in any agreement
entered into by the Company and the Guarantors pursuant to this clause (xi);
(xi) prior to any public offering of Transfer Restricted Securities, cooperate with the
selling Holders and their counsel in connection with the registration and qualification of
the Transfer Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the applicable Registration Statement; provided, however,
that the Company and the Guarantors shall not be required to register or qualify as a
foreign corporation where it is not now so qualified or to take any action that would
subject it to the service of process in suits or to taxation, other than as to matters and
transactions relating to the Registration Statement, in any jurisdiction where it is not now
so subject;
(xii) in connection with any sale of Transfer Restricted Securities that will result in
such securities no longer being Transfer Restricted Securities, cooperate with the Holders
to facilitate the timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations and such names as the
14
selling Holders may request at least two Business Days prior to such sale of Transfer
Restricted Securities;
(xiii) use their commercially reasonable efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such Transfer Restricted
Securities, subject to the proviso contained in clause (xi) above;
(xiv) provide a CUSIP number for all Transfer Restricted Securities not later than the
effective date of a Registration Statement covering such Transfer Restricted Securities and
provide the Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the Depository Trust
Company;
(xv) otherwise use all commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its security
holders with regard to any applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 under the Act (which
need not be audited) covering a twelve-month period beginning after the effective date of
the Registration Statement (as such term is defined in paragraph (c) of Rule 158 under the
Act);
(xvi) cause the Indenture to be qualified under the TIA not later than the effective
date of the first Registration Statement required by this Agreement and, in connection
therewith, cooperate with the Trustee and the Holders to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in accordance with the
terms of the TIA; and execute and use its commercially reasonable efforts to cause the
Trustee to execute, all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner; and
(xvii) provide promptly to each Holder, upon request, each document filed with the
Commission pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a Transfer
Restricted Security that, upon receipt of the notice referred to in Section 6(c)(i) or 6(c)(iii)(C)
or any notice from the Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof or of any applicable Blackout Period (in each case, a “Suspension Notice”),
such Holder will forthwith discontinue disposition of Transfer Restricted Securities pursuant to
the applicable Registration Statement and Prospectus until (i) such Holder has received copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder
is advised in writing by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus (in each case, the “Recommencement Date”). Each Holder receiving a Suspension Notice
hereby agrees that it will either (i) destroy any Prospectuses, other than
15
permanent file copies, then in such Holder’s possession which have been replaced by the
Company with more recently dated Prospectuses, or (ii) deliver to the Company (at the Company’s
expense) all copies, other than permanent file copies, then in such Holder’s possession of the
Prospectus covering such Transfer Restricted Securities that was current at the time of receipt of
the Suspension Notice. The time period regarding the effectiveness of such Registration Statement
set forth in Section 3 or 4 hereof, as applicable, shall be extended by a number of days equal to
the number of days in the period from and including the date of delivery of the Suspension Notice
to the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a Registration Statement
becomes effective, including without limitation: (i) all registration and filing fees and
expenses; (ii) all fees and expenses of compliance with federal securities and state Blue Sky or
securities laws; (iii) all expenses of printing (including printing certificates for the Exchange
Notes to be issued in the Exchange Offer and printing of Prospectuses), messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the Company and the
Guarantors and one counsel for all of the Holders of Transfer Restricted Securities selected by the
Holders of a majority in principal amount of Transfer Restricted Securities being registered; (v)
all application and filing fees in connection with listing the Exchange Notes on a national
securities exchange or automated quotation system pursuant to the requirements hereof; and (vi) all
fees and disbursements of independent certified public accountants of the Company and the
Guarantors (including the expenses of any special audit and comfort letters required by or incident
to such performance); provided, however, that in no event shall the Company or the Guarantors be
responsible for any agency commissions or fees or underwriting discounts, commissions or fees
attributable to the sale or other disposition of Transfer Restricted Securities and the fees and
disbursements of any counsel or other advisor or experts retained by such Holder (severally or
jointly), other than the counsel and experts specifically referred to in clause (b) below.
The Company will, in any event, bear its and the Guarantors’ internal expenses (including,
without limitation, all salaries and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees and expenses of any Person,
including special experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company and the Guarantors will reimburse the Initial Purchasers and the Holders of
Transfer Restricted Securities who are tendering Initial Notes in the Exchange Offer and/or selling
or reselling Initial Notes or Exchange Notes pursuant to the “Plan of Distribution” contained in
the Exchange Offer Registration Statement or the Shelf Registration Statement, as applicable, for
the reasonable fees and disbursements of not more than one counsel shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for whose benefit such
Registration Statement is being prepared, if any.
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SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors agree, jointly and severally, to indemnify and hold
harmless each Holder included in any Registration Statement (each, a “Participant”), its directors,
officers and each Person, if any, who controls such Participant (within the meaning of Section 15
of the Act or Section 20 of the Exchange Act), from and against any and all losses, claims,
damages, liabilities or judgments, (including without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any action that could
give rise to any such losses, claims, damages, liabilities or judgments) caused by any untrue
statement or alleged untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus, Free Writing Prospectus or any “issuer information”
(as defined in Rule 433 of the Securities Act) filed or required to be filed pursuant to Rule
433(d) under the Securities Act (or any amendment or supplement thereto), or caused by any omission
or alleged omission to state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages, liabilities or judgments are caused by
an untrue statement or omission or alleged untrue statement or omission that is based upon
information relating to any of the Participants furnished in writing to the Company by or on behalf
of any of the Participants; provided, however, that neither the Company nor the Guarantors shall be
liable to any Participant, its directors, officers or any Person, if any, who controls such
Participant (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) under
the indemnity agreement in this Section 8 to the extent, but only to the extent, that such loss,
claim, damage, liability or judgment of such Participant results from an untrue statement of a
material fact or an omission of a material fact contained in the preliminary prospectus, which
untrue statement or omission was completely corrected in the Prospectus and such Participant failed
to deliver the Prospectus to that Person as required by the Act and within the time required by the
Act.
(b) Each Participant agrees, severally and not jointly, to indemnify and hold harmless the
Company and the Guarantors, and their respective directors and officers, and each Person, if any,
who controls (within the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Company, or the Guarantors to the same extent as the foregoing indemnity from the Company and the
Guarantors set forth in section (a) above, but only with reference to information relating to such
Participant furnished in writing to the Company by or on behalf of such Participant expressly for
use in any Registration Statement, preliminary prospectus or Prospectus (or any amendment or
supplement thereto). In no event shall any Participant, its directors, officers or any Person who
controls such Participant be liable or responsible for any amount in excess of the amount by which
the total amount received by such Participant with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds the sum of: (i) the amount paid by such
Participant for such Transfer Restricted Securities plus (ii) the amount of any damages
that such Participant, its directors, officers or any Person who controls such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission.
(c) In case any action shall be commenced involving any Person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b) (the “indemnified party”), the indemnified party
shall promptly notify the Person against whom such indemnity may be sought
17
(the “indemnifying party”) in writing (however, the failure to notify the indemnifying party
shall not relieve it from liability hereunder except to the extent it is materially prejudiced by
such failure and shall not relieve if from liability it may have other than under this Agreement)
and the indemnifying party shall assume the defense of such action, including the employment of
counsel reasonably satisfactory to the indemnified party and the payment of all fees and expenses
of such counsel, as incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), a Participant shall not be required to
assume the defense of such action pursuant to this Section 8(c), but may employ separate counsel
and participate in the defense thereof, but the fees and expenses of such counsel, except as
provided below, shall be at the expense of the Participant). Any indemnified party shall have the
right to employ separate counsel in any such action and participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of the indemnified party unless (i) the
employment of such counsel has been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party has failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party, or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified party and the indemnifying party,
and the indemnified party has been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case, the indemnifying
party shall not, in connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for all indemnified parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by a majority of the Participants who
sold a majority of the Transfer Restricted Securities sold by all Participant, in the case of the
parties indemnified pursuant to Section 8(a), and by the Company and Guarantors, in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party shall indemnify and hold
harmless the indemnified party from and against any and all losses, claims, damages, liabilities
and judgments by reason of any settlement of any action (i) effected with its written consent, or
(ii) effected without its written consent if the settlement is entered into more than 20 Business
Days after the indemnifying party received a request from the indemnified party for reimbursement
for the fees and expenses of counsel (in any case where such fees and expenses are at the expense
of the indemnifying party) and, prior to the date of such settlement, the indemnifying party has
failed to comply with such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party (which consent shall not be unreasonably withheld), effect
any settlement or compromise of, or consent to the entry of judgment with respect to, any pending
or threatened action in respect of which the indemnified party is or could have been a party and
indemnity or contribution may be or could have been sought hereunder by the indemnified party,
unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability on claims that are or could have been the subject matter of
such action, and (ii) does not include a statement as to or an admission of fault, culpability or a
failure to act, by or on behalf of the indemnified party.
(d) To the extent that the indemnification provided for in this Section 8 is unavailable to an
indemnified party in respect of any losses, claims, damages, liabilities or judgments
18
referred to therein, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages, liabilities or judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the
Participants, on the other hand, from their initial sale of Transfer Restricted Securities (or in
the case of Exchange Notes that are Transfer Restricted Securities, the sale of the Initial Notes
for which such Exchange Notes were exchanged), or (ii) if the allocation provided by clause 8(d)(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 8(d)(i) above but also the relative fault of the
Company and the Guarantors, on the one hand, and of the Participants, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantors, on the one hand, and of the Participants, on the other
hand, shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a material fact relates
to information supplied by the Company or such Guarantor, on the one hand, or by the Holder, on the
other hand, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and judgments referred to above shall be deemed to
include, subject to the limitations set forth in Section 8(c) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or defending any action
or claim.
The Company, the Guarantors and each Participant agree that it would not be just and equitable
if contribution pursuant to this Section 8(d) were determined by pro rata allocation (even if the
Participants were treated as one entity for such purpose) or by any other method of allocation that
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or judgments referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
matter, including any action that could have given rise to such losses, claims, damages,
liabilities or judgments. Notwithstanding the provisions of this Section 8, no Participant, its
directors, its officers or any Person, if any, who controls such Participant shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the total amount received
by such Participant with respect to the sale of Transfer Restricted Securities pursuant to a
Registration Statement exceeds the sum of: (i) the amount paid by such Participant for such
Transfer Restricted Securities plus (ii) the amount of any damages that such Participant 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 Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation. The Participants’ obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of Transfer Restricted
Securities held by each Participant hereunder and not joint.
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SECTION 9. RULE 144A AND RULE 144
The Company and each Guarantor agrees with each Holder, for so long as any Transfer Restricted
Securities remain outstanding and during any period in which the Company or such Guarantor (i) is
not subject to Section 13 or 15(d) of the Exchange Act, or no longer files reports required to be
filed under Section 13 or 15(d) of the Exchange Act as if the Company were required to file such
reports, to make available, upon request of any Holder, to such Holder or beneficial owner of
Transfer Restricted Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A under the Act.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors acknowledge and agree that any failure
by the Company and/or the Guarantors to comply with their respective obligations under Sections 3
and 4 hereof may result in material irreparable injury to the Initial Purchasers or the Holders for
which there is no adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Initial Purchasers or any Holder
may obtain such relief as may be required to specifically enforce the Company’s and the Guarantors’
obligations under Sections 3 and 4 hereof. The Company and the Guarantors further agree to waive
the defense in any action for specific performance that a remedy at law would be adequate.
(b) Free Writing Prospectus. The Company represents, warrants and covenants that it
(including its agents and representatives) will not prepare, make, use, authorize, approve or refer
to any “written communication” (as defined in Rule 405 under the Securities Act) in connection with
the issuance and sale of the Initial Notes and the Exchange Notes, other than (i) any communication
pursuant to Rule 134, Rule 135 or Rule 135c under the Securities Act, (ii) any document
constituting an offer to sell or solicitation of an offer to buy the Initial Notes or the Exchange
Notes that falls within the exception from the definition of prospectus in Section 2(a)(10)(a) of
the Securities Act, or (iii) a prospectus satisfying the requirements of section 10(a) of the
Securities Act or of Rule 430, Rule 430A, Rule 430B, Rule 430C or Rule 431 under the Securities
Act.
(c) No Inconsistent Agreements. The Company and any Guarantor will not, on or after
the date of this Agreement, enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. The Company and any Guarantor have not previously entered into, nor is
currently a party to, any agreement granting any registration rights with respect to its securities
to any Person that would require such securities to be included in any Registration Statement filed
hereunder. The rights granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company’s and the Guarantors’ securities
under any agreement in effect on the date hereof.
(d) Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to or departures from the
20
provisions hereof may not be given unless (i) in the case of Section 5 hereof and this Section
10(d)(i), the Company has obtained the written consent of Holders of all outstanding Transfer
Restricted Securities, and (ii) in the case of all other provisions hereof, the Company has
obtained the written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities (excluding Transfer Restricted Securities held by the Company or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to departure from the provisions
hereof that relates exclusively to the rights of Holders whose Transfer Restricted Securities are
being tendered pursuant to the Exchange Offer, and that does not affect directly or indirectly the
rights of other Holders whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the outstanding principal amount
of Transfer Restricted Securities subject to such Exchange Offer.
(e) Additional Guarantors. The Company shall cause any of its Restricted Subsidiaries
(as defined in the Indenture) that becomes, prior to the consummation of the Exchange Offer, a
Guarantor in accordance with the terms and provisions of the Indenture to become a party to this
Agreement as a Guarantor.
(f) Third Party Beneficiary. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, and shall have the right to enforce such agreements directly to the
extent they may deem such enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
Park-Ohio Industries, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
With a copy to:
Xxxxx Day
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the
21
mail, postage prepaid, if mailed; when receipt acknowledged, if telecopied; and on the next
Business Day, if timely delivered to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
(h) 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 limitation and
without the need for an express assignment, subsequent Holders; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign acquired Transfer Restricted Securities from such
Holder; provided, further, that nothing herein shall be deemed to permit any assignment, transfer
or other disposition of Transfer Restricted Securities in violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Transfer
Restricted Securities in any manner, whether by operation of law or otherwise, such Transfer
Restricted Securities shall be held subject to all of the terms of this Agreement, and by taking
and holding such Transfer Restricted 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, including
the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(i) 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.
(j) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(k) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(l) Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable,
the validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(m) Entire Agreement. This Agreement is intended by the parties as a final expression
of their agreement and intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein. There are
no restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
(Signature Page Follows.)
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
| Park-Ohio Industries, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | General Counsel and Secretary | |||
| Ajax Tocco Magnethermic Corporation |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| ATBD, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Blue Falcon Travel, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Columbia Nut & Bolt LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Control Transformer, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Feco, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
Signature Page to Registration Rights Agreement
| Forging Parts & Machining Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Gateway Industrial Supply LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| General Aluminum Mfg. Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| ILS Technology LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Induction Management Services, LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Integrated Holding Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Integrated Logistics Holding Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Integrated Logistics Solutions, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
Signature Page to Registration Rights Agreement
| Xxxxx & Park Screw & Bolt Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Park-Ohio Forged & Machined Products LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Park-Ohio Products, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Pharmaceutical Logistics, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Pharmacy Wholesale Logistics, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| P-O Realty LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| POVI L.L.C. |
||||
| By: | Park-Ohio Industries, Inc., its sole member | |||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
Signature Page to Registration Rights Agreement
| Precision Machining Connection LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| RB&W Ltd. By: Integrated Logistics Holding Company, its sole member |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| RB&W Manufacturing LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Red Bird, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Snow Dragon LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Southwest Steel Processing LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| ST Holding Corp. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
Signature Page to Registration Rights Agreement
| STMX, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Summerspace, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Supply Technologies (NY), Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Supply Technologies LLC |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| The Ajax Manufacturing Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| The Xxxxxx Xxxx Company |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| TW Manufacturing Co. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
| Tocco, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
Signature Page to Registration Rights Agreement
| WB&R Acquisition Company, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxx X. Xxxxxxx | |||
| Title: | Secretary | |||
Signature Page to Registration Rights Agreement
| BARCLAYS CAPITAL INC. As representative of the several Initial Purchasers named in Schedule 1 of the Purchase Agreement By: BARCLAYS CAPITAL INC., as Authorized Representative |
||||
| By | /s/ Xxxxxxxx Xxxxxx | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
Signature Page to Registration Rights Agreement
SCHEDULE I
LIST OF GUARANTORS
| State of Incorporation | ||
| Entity | or Organization | |
Ajax Tocco Magnethermic Corporation
|
Ohio | |
ATBD, Inc.
|
Ohio | |
Blue Falcon Travel, Inc.
|
Alabama | |
Columbia Nut & Bolt LLC
|
Ohio | |
Control Transformer, Inc.
|
Ohio | |
Feco, Inc.
|
Illinois | |
Forging Parts & Machining Company
|
Ohio | |
Gateway Industrial Supply LLC
|
Ohio | |
General Aluminum Mfg. Company
|
Ohio | |
ILS Technology LLC
|
Ohio | |
Induction Management Services, LLC
|
Michigan | |
Integrated Holding Company
|
Ohio | |
Integrated Logistics Holding Company
|
Ohio | |
Integrated Logistics Solutions, Inc.
|
Ohio | |
Xxxxx & Park Screw & Bolt Company
|
Ohio | |
Park-Ohio Forged & Machined Products LLC
|
Ohio | |
Park-Ohio Products, Inc.
|
Ohio | |
Pharmaceutical Logistics, Inc.
|
Ohio | |
Pharmacy Wholesale Logistics, Inc.
|
Ohio | |
P-O Realty LLC
|
Ohio | |
POVI L.L.C.
|
Ohio | |
Precision Machining Connection LLC
|
Ohio | |
RB&W Ltd.
|
Ohio | |
RB&W Manufacturing LLC
|
Ohio | |
Red Bird, Inc.
|
Ohio | |
Snow Dragon LLC
|
Ohio | |
Southwest Steel Processing LLC
|
Ohio | |
ST Holding Corp.
|
Ohio | |
STMX, Inc.
|
Ohio | |
Summerspace, Inc.
|
Ohio | |
Supply Technologies (NY), Inc.
|
New York | |
Supply Technologies LLC
|
Ohio | |
The Ajax Manufacturing Company
|
Ohio | |
The Xxxxxx Xxxx Company
|
Pennsylvania | |
TW Manufacturing Co.
|
Ohio | |
Tocco, Inc.
|
Alabama | |
WB&R Acquisition Company, Inc.
|
Pennsylvania |
ANNEX A
PLAN OF DISTRIBUTION
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 unregistered
notes where such unregistered notes were acquired as a result of market-making activities or other
trading activities. To the extent any such broker-dealer participates in the exchange offer, we
have agreed that for a period of up to 180 days we will use commercially reasonable efforts to make
this prospectus, as amended or supplemented, available to such broker-dealer for use in connection
with any such resale, and will deliver as many additional copies of this prospectus and each
amendment or supplement to this prospectus and any documents incorporated by reference in this
prospectus as such broker-dealer may reasonably request.
We will not receive any proceeds from any sale of exchange notes by broker-dealers. Exchange notes
received by broker-dealers for their own accounts pursuant to the exchange offer may be sold from
time to time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the exchange notes or a combination of these
methods of resale, at market prices prevailing at the time of resale, at prices related to such
prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer or the purchasers of any such exchange notes. Any
broker-dealer that resells exchange notes that were received by it for its own account pursuant to
the exchange offer and any broker or dealer that participates in a distribution of such exchange
notes may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit
on any such resale of exchange notes and any commissions or concessions received by any such
persons may be deemed to be underwriting compensation under the Securities Act. The letter of
transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the
Securities Act.
We have agreed to pay all expenses incident to the exchange offer and will indemnify the holders of
outstanding notes, including any broker-dealers, against certain liabilities, including liabilities
under the Securities Act.
Annex A-1
