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EXHIBIT 4.2
EXHIBIT B
(to Indenture)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of June 9, 1997 between ICO, INC., a Texas corporation (the
"Company"), and Bear, Xxxxxxx & Co. Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement
dated as of June 4, 1997 between the Company and the Initial Purchaser (the
"Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchaser of an aggregate of $120,000,000 aggregate principal amount of
the Company's 10 3/8% Senior Notes due 2007 (the "Notes"). In order to induce
the Initial Purchaser to enter into the Purchase Agreement and to purchase the
Notes, the Company has agreed to provide to the Initial Purchaser and its
direct and indirect transferees the registration rights for the Notes set forth
in this Agreement. The execution and delivery of this Agreement is a condition
precedent to the obligations of the Initial Purchaser under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the
following capitalized defined terms shall have the following meanings (and,
unless otherwise indicated, capitalized terms used herein without definition
shall have the meanings ascribed to them in the Purchase Agreement):
"Act" shall mean the Securities Act of 1933, as amended.
"Agreement" shall have the meaning set forth in the preamble
to this Agreement.
"Applicable Period" shall have the meaning set forth in
Section 3(t) hereof.
"Closing Date" shall mean the Closing Date as defined in the
Purchase Agreement.
"Commission" shall mean the Securities and Exchange
Commission, or such other federal agency administering the Act or the
Exchange Act.
"Company" shall have the meaning set forth in the preamble to
this Agreement, and shall also include the Company's successors.
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"Depository" shall mean The Depository Trust Company, or any
successor depositary appointed by the Company; provided, however, that
such depositary must have an address in the Borough of Manhattan, The
City of New York.
"Effectiveness Period" shall have the meaning set forth in
Section 2(b) hereof.
"Event Date" shall have the meaning set forth in Section 2(e)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Notes for Notes pursuant to Section 2(a) hereof.
"Exchange Notes" shall mean the 10 3/8% Series B Senior Notes
due 2007, to be issued by the Company under the Indenture and
containing terms identical to the Notes (except that (i) interest
thereon shall accrue from the last date on which interest was paid on
the Notes or, if no such interest has been paid, from the Issue Date
(as defined in the Indenture), and (ii) the transfer restrictions
thereon shall be eliminated) to be offered to Holders of Notes in
exchange for Notes pursuant to the Exchange Offer.
"Exchange Offer Registration" shall mean a registration under
the Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean the
registration statement (on Form S-4 or, if applicable, on any other
appropriate form) relating to the Exchange Offer, and all amendments
and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Exchange Period" shall have the meaning set forth in Section
2(a) hereof.
"Holder" shall mean the Initial Purchaser, for so long as it
owns any Registrable Securities, and each of its respective
successors, assigns and direct and indirect transferees who become
registered owners of Registrable Securities under the Indenture.
"Indenture" shall mean the Indenture dated as of June 9, 1997
by and between the Company and Fleet National Bank, as trustee, as the
same may be amended or supplemented from time to time in accordance
with the terms thereof.
"Initial Purchaser" shall have the meaning set forth in the
preamble to this Agreement.
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"Inspectors" shall have the meaning set forth in Section 3(n)
hereof.
"Liquidated Damages" shall have the meaning set forth in
Section 2(e) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding (as determined under the
Indenture) Registrable Securities to be sold pursuant to a Shelf
Registration Statement.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Notes" shall have the meaning set forth in the preamble to
this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth
in Section 3(t) hereof.
"Person" shall mean any individual, corporation, limited
liability company, general or limited partnership, limited liability
partnership, joint venture, association, joint-stock company, trust,
charitable foundation, unincorporated organization, government or
agency or political subdivision thereof or any other entity.
"Private Exchange" shall have the meaning set forth in Section
2(a) hereof.
"Private Exchange Notes" shall have the meaning set forth in
Section 2(a) hereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including any prospectus contained in an Exchange Offer
Registration Statement and any prospectus or prospectus supplement
with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(n)
hereof.
"Registrable Securities" shall mean the Notes and, if issued,
the Private Exchange Notes; provided, however, that Notes or Private
Exchange Notes, as the case may be, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Notes or Private Exchange Notes or the resale thereof shall have been
declared effective under the Act and such Notes or Private Exchange
Notes, as
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the case may be, shall have been disposed of pursuant to such
Registration Statement, (ii) such Notes or Private Exchange Notes, as
the case may be, shall have become eligible to be sold to the public
pursuant to Rule 144(k) (or any similar provision then in force, but
not Rule 144A) under the Act, (iii) such Notes or Private Exchange
Notes, as the case may be, shall have ceased to be outstanding or (iv)
with respect to the Notes, such Notes have been exchanged for Exchange
Notes upon consummation of the Exchange Offer.
"Registration Expenses" shall mean any and all expenses incident
to performance of or compliance by the Company with this Agreement,
including, without limitation: (i) Commission, stock exchange or NASD
registration and filing fees, including, if applicable, the fees and
expenses of any "qualified independent underwriter" and its counsel
that is required to be retained by any Holder of Registrable
Securities in accordance with the rules and regulations of the NASD,
(ii) fees and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees and
disbursements of counsel for any underwriters or Holders in connection
with the blue sky qualification of any of the Exchange Notes or
Registrable Securities) and compliance with the rules of the NASD,
(iii) expenses of any Persons in preparing or assisting in preparing,
printing and distributing any Registration Statement, any Prospectus
and any amendments or supplements thereto, and in preparing or
assisting in preparing, printing and distributing any underwriting
agreements, securities sales agreements and other documents relating
to the performance of and compliance with the obligations under this
Agreement, (iv) rating agency fees, if applicable, (v) fees and
disbursements of counsel for and independent certified public
accountants of the Company, including the expenses of any "cold
comfort" letters required by or incident to such performance and
compliance, (vi) fees and expenses of the Trustee, and any exchange
agent or custodian, (vii) fees and expenses incurred in connection
with the listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges, and (viii) the fees and expenses of
any special experts retained by the Company in connection with any
Registration Statement, if applicable. The term "Registration
Expenses" shall not include fees of counsel to any underwriters or the
Holders (other than the fees described in clauses (i) and (ii) above),
underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Registrable Securities by a
Holder pursuant to a Shelf Registration Statement.
"Registration Statement" shall mean any registration statement
of the Company relating to the Exchange Notes or Registrable
Securities pursuant to the provisions of this Agreement, and all
amendments and supplements to any such registration statement,
including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
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"Shelf Registration" shall mean a registration effected pursuant
to Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of
this Agreement which covers all of the Registrable Securities, on an
appropriate form under Rule 415 under the Act, or any similar rule
that may be adopted by the Commission, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"Trustee" shall mean the trustee under the Indenture.
2. Registration under the Act.
(a) Exchange Offer. To the extent not prohibited by any
applicable law or applicable interpretation of the staff of the Commission, the
Company shall, for the benefit of the Holders, at the Company's cost, use its
best efforts to cause to be filed with the Commission an Exchange Offer
Registration Statement on or prior to 60 days after the Closing Date on an
appropriate form under the Act covering the offer by the Company to the Holders
to exchange all of the Registrable Securities (other than Private Exchange
Notes) for a like aggregate principal amount of Exchange Notes, to cause such
Exchange Offer Registration Statement to be declared effective under the Act by
the Commission on or prior to 120 days after the Closing Date, to cause such
Registration Statement to remain effective until the closing of the Exchange
Offer and to cause the Exchange Offer to be consummated on or prior to 45 days
after the date on which the Exchange Offer Registration Statement was declared
effective under the Act by the Commission. The Exchange Notes will be issued
under the Indenture. Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder (other than
Participating Broker-Dealers) eligible and electing to exchange Registrable
Securities for Exchange Notes (assuming that such Holder is not an affiliate of
the Company within the meaning of Rule 405 under the Act, acquires the Exchange
Notes in the ordinary course of such Holder's business and has no arrangements
or understandings with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes) to transfer such Exchange Notes
from and after their receipt without any limitations or restrictions under the
Act or under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
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(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Exchange Offer open for acceptance for
a period of not less than 30 days after the date notice thereof is
mailed to the Holders, or longer if required by applicable law (such
period being referred to herein as the "Exchange Period");
(iii) utilize the services of the Depository for the
Exchange Offer;
(iv) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York City time, on the last
business day of the Exchange Period, by sending to the institution
specified in the notice a telegram, telex, facsimile transmission or
letter setting forth the name of such Holder, the principal amount of
Notes delivered for exchange, and a statement that such Holder is
withdrawing its election to have such Notes exchanged;
(v) notify each Holder that upon consummation of the
Exchange Offer any Note not tendered will remain outstanding and
continue to accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchaser and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable
laws relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Company upon the request of the
Initial Purchaser shall, simultaneously with the delivery of the Exchange Notes
in the Exchange Offer, issue and deliver to the Initial Purchaser in exchange
(the "Private Exchange") for Notes held by the Initial Purchaser a like
principal amount of debt securities of the Company that are identical (except
that such securities shall bear appropriate transfer restrictions) to the
Exchange Notes (the "Private Exchange Notes") and which are issued pursuant to
the Indenture (which will provide that the Exchange Notes will not be subject
to the transfer restrictions set forth in the Indenture and that the Exchange
Notes, the Private Exchange Notes and the Notes will vote and consent together
on all matters as one class and that none of the Exchange Notes, the Private
Exchange Notes or the Notes will have the right to vote or consent as a
separate class on any matter). The Private Exchange Notes shall be of the same
series as and shall bear the same CUSIP number as the Exchange Notes.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company shall:
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(i) accept for exchange all Notes or portions thereof
duly tendered and not validly withdrawn pursuant to the Exchange
Offer;
(ii) accept for exchange all Notes or portions thereof
duly tendered pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by
the Company, and issue, and cause the Trustee to promptly authenticate
and deliver to each Holder, a new Exchange Note or Private Exchange
Note, as the case may be, equal in principal amount to the principal
amount of the Notes surrendered by such Holder.
To the extent not prohibited by applicable law or any
applicable interpretation of the staff of the Commission, the Company shall use
its best efforts to complete the Exchange Offer as provided above, and shall
comply with all applicable requirements of the Act, the Exchange Act and other
applicable laws in connection with the Exchange Offer. The Exchange Offer
shall not be subject to any condition, other than that (i) the Exchange Offer
does not violate any applicable law or interpretation of the staff of the
Commission, (ii) no action or proceeding has been instituted or threatened in
any court or by or before any governmental agency with respect to the Exchange
Offer which, in the reasonable judgment of the Company, might impair the
ability of the Company to proceed with the Exchange Offer, (iii) there has not
been any material change, or development involving a prospective material
change, in the business or financial affairs of the Company or any of its
subsidiaries which, in the reasonable judgment of the Company, would materially
impair the Company's ability to consummate the Exchange Offer or have a
material adverse effect on the Company if the Exchange Offer is consummated,
(iv) there has not been proposed, adopted, or enacted any law, statute, rule or
regulation which, in the reasonable judgment of the Company, might materially
impair the ability of the Company to proceed with the Exchange Offer or have a
material adverse effect on the Company if the Exchange Offer is consummated and
(v) all governmental approvals which the Company shall reasonably deem
necessary for the consummation of the Exchange Offer as contemplated shall have
been obtained. Each Holder of Registrable Securities who wishes to exchange
such Registrable Securities for Exchange Notes in the Exchange Offer will be
required to make certain customary representations in connection therewith,
including representations that such Holder is not an affiliate of the Company
within the meaning of Rule 405 under the Act, that any Exchange Notes to be
received by it will be acquired in the ordinary course of business and that at
the time of the commencement of the Exchange Offer it had no arrangement with
any Person to participate in the distribution (within the meaning of the Act)
of the Exchange Notes and will be required to make such other representations
as may be necessary under applicable Commission rules, regulations or
interpretations to render available the use of Form S-4 or any other
appropriate form under the Act.
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In the event that the Company is unable to consummate the
Exchange Offer due to any event listed in clauses (i) through (v) in the
paragraph immediately above, the Company shall not be deemed to have breached
any covenant under this Section 2(a).
Upon consummation of the Exchange Offer in accordance with
this Section 2(a), the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Securities that are
Private Exchange Notes and Exchange Notes held by Participating Broker-Dealers,
and the Company shall have no further obligation to register Registrable
Securities (other than Private Exchange Notes) pursuant to Section 2(b) of this
Agreement.
(b) Shelf Registration. In the event that (i) the
Exchange Offer Registration provided in Section 2(a) above is not available to
any Holder or may not be consummated as soon as practicable after the last day
of the Exchange Period because, in either case, it would violate applicable
securities laws or because the applicable interpretations of the staff of the
Commission would not permit the Company to effect the Exchange Offer, or (ii)
the Exchange Offer is not for any other reason consummated within 180 days of
the Closing Date, the Company shall, at its cost, cause to be filed with the
Commission as promptly as practicable after such determination or date, as the
case may be, and, in any event, on or prior to 60 days thereafter, a Shelf
Registration Statement providing for the sale by the Holders of all of the
Registrable Securities, and shall use its best efforts to cause such Shelf
Registration Statement declared effective by the Commission on or prior to 120
days after such determination or date. No Holder of Registrable Securities may
include any of its Registrable Securities in any Shelf Registration pursuant to
this Agreement unless and until such Holder furnishes to the Company in
writing, within 15 days after receipt of a request therefor, such information
as the Company may, after conferring with counsel with regard to information
relating to Holders that would be required by the Commission to be included in
such Shelf Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus
included therein. Each Holder as to which any Shelf Registration is being
effected agrees to furnish promptly to the Company all information required to
be disclosed in the applicable Shelf Registration Statement or Prospectus
included therein by the rules and regulations of the Commission applicable to
the Shelf Registration Statement in order to make the information previously
furnished to the Company by such Holder not materially misleading.
The Company agrees, subject to applicable law or applicable
interpretation of the staff of the Commission, to use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended under the Act for a period ending on the earlier of
the date two years from the Closing Date (subject to extension pursuant to the
last paragraph of Section 3) or when all of the Registrable Securities covered
by the Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement or cease to be outstanding (the "Effectiveness Period").
The Company shall not permit any securities other than Registrable Securities
to be included in the Shelf
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Registration. The Company will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder copies of the Prospectus which is a
part of the Shelf Registration Statement, notify each such Holder when the
Shelf Registration Statement has become effective and take certain other
actions as are customary to permit unrestricted resales of the Registrable
Securities covered by the Shelf Registration Statement. The Company further
agrees, if necessary, to use its reasonable best efforts to supplement or amend
the Shelf Registration Statement, if required by the Act or the rules,
regulations or instructions applicable to the registration form used by the
Company for such Shelf Registration Statement or by any other rules and
regulations thereunder for shelf registrations, or if reasonably requested by
the Majority Holders, and the Company agrees to furnish to the Holders copies
of any such supplement or amendment promptly after its being used or filed with
the Commission.
(c) Expenses. The Company shall pay all Registration
Expenses in connection with registrations pursuant to Section 2(a) or 2(b).
Each Holder shall pay all expenses of its counsel (other than the fees
described in clauses (i) and (ii) of the definition of "Registration
Expenses"), underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder's Registrable Securities
pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the Commission; provided,
however, that if, after it has been declared effective, the offering of
Registrable Securities pursuant to a Shelf Registration Statement is interfered
with by any stop order, injunction or other order or requirement of the
Commission or any other governmental agency or court, such Registration
Statement will be deemed not to have been effective during the period of such
interference, until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
(e) Liquidated Damages. In the event that an Exchange
Offer Registration Statement has not been filed with the Commission on or prior
to 60 days after the Closing Date, additional interest payable by the Company
as liquidated damages ("Liquidated Damages") will accrue on the Notes from and
including the 31st day after the Closing Date until but excluding the date such
Exchange Offer Registration Statement is filed. In addition, if on or prior to
120 days after the Closing Date, such Exchange Offer Registration Statement is
not declared effective under the Act by the Commission, Liquidated Damages will
accrue on the Notes from and including the 121st day after the Closing Date
until but excluding the date such Exchange Offer Registration Statement is
declared effective. Further, if on or prior to 45 days after the date on which
the Exchange Offer Registration Statement was declared effective under the Act
by the Commission, the Exchange Offer is not consummated, Liquidated Damages
will accrue on the Notes from and including the 46th day after the date the
Exchange Offer Registration Statement was declared effective under the
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Act by the Commission, until but excluding the date of consummation of the
Exchange Offer. If applicable law or interpretations of the staff of the
Commission prohibit a Holder from participating in the Exchange Offer or if for
any reason the Exchange Offer is not consummated within 180 days of the Closing
Date and if a Shelf Registration Statement is not filed or declared effective
within the time periods provided by Section 2(b) hereof for such filing or
declaration, Liquidated Damages will accrue on the Notes (other than those
exchanged in the Exchange Offer) or the Private Exchange Notes, as the case may
be, from and including the day immediately following such default until but
excluding the effective date of the Shelf Registration Statement. Further, if
the Shelf Registration Statement or the Exchange Offer Registration Statement
is declared effective but thereafter ceases to be effective or usable during
the time periods specified in this Agreement, Liquidated Damages will accrue on
the Notes (other than those exchanged in the Exchange Offer) or the Private
Exchange Notes, as the case may be, from and including the day immediately
following such default until but excluding the date such Registration Statement
is declared effective. In each case, such Liquidated Damages will be payable
in cash semiannually in arrears, with the first semiannual payment due on the
first interest payment date in respect of the Notes (or the Private Exchange
Notes) following the date from which Liquidated Damages begin to accrue, and
will accrue, under each circumstance set forth above at a rate per annum equal
to an additional one quarter of one percent (0.25%) of the principal amount of
the Notes (or the Private Exchange Notes) upon the occurrence of each such
circumstance, which rate will increase by one quarter of one percent (0.25%)
for each 30-day period (as to a failure to file an Exchange Offer Registration
Statement or a Shelf Registration Statement with the Commission) or for each
90-day period (as to all other circumstances) that such Liquidated Damages
continue to accrue, with an aggregate maximum increase in the interest rate per
annum equal to one percent (1.00%).
Upon the filing of the Exchange Offer Registration Statement,
the effectiveness of the Exchange Offer Registration Statement, or the
consummation of the Exchange Offer, as the case may be, the interest rate borne
by the Notes will be reduced by the full amount of any such increase to the
extent that such increase related to the failure of any such event to have
occurred unless and until increased as described above. Upon the filing or the
effectiveness of a Shelf Registration Statement, as the case may be, the
interest rate borne by the Notes (and the Private Exchange Notes) will be
reduced by the full amount of any such increase to the extent that such
increase related to the failure of any such event to have occurred unless and
until increased as described above. Notwithstanding the foregoing, the Company
(i) shall not be required to amend or supplement the Shelf Registration
Statement, any related prospectus or any document incorporated therein by
reference and (ii) may suspend the effectiveness of any such Shelf Registration
Statement in the event that, and for a period not to exceed, for so long as
this Agreement is in effect, an aggregate of 90 days in any one calendar year
if (A) an event occurs and is continuing as a result of which the Shelf
Registration Statement, any related prospectus or any document incorporated
therein by reference as then amended or supplemented would, in the Company's
good faith judgment, contain an untrue statement of a material fact or omit to
state a material fact necessary in
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order to make the statements therein not misleading, and (B) the Company
determines in its good faith judgment that the disclosure of such event at such
time would have a material adverse effect on the business, operations or
prospects of the Company; provided that any such suspension shall not relieve
the Company from its obligation to pay Liquidated Damages.
The Company shall notify the Trustee within three business
days after each and every date on which an event occurs in respect of which
Liquidated Damages is required to be paid (an "Event Date"). Liquidated
Damages shall be paid by depositing with the Trustee, in trust, for the benefit
of the Holders of Notes, Exchange Notes or Private Exchange Notes, as the case
may be, on or before the applicable semiannual interest payment date,
immediately available funds in sums sufficient to pay the Liquidated Damages
then due. The Liquidated Damages due shall be payable on each interest payment
date to the record Holder of Notes entitled to receive the interest payment to
be paid on such date as set forth in the Indenture. Each obligation to pay
Liquidated Damages shall be deemed to accrue from and including the day
following the applicable Event Date.
(f) Specific Enforcement. Without limiting the remedies
available to the Initial Purchaser and the Holders, the Company acknowledges
that any failure by the Company to comply with its obligations under Section
2(a) and Section 2(b) hereof would result in material irreparable injury to the
Initial Purchaser and the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries precisely
and that, in the event of any such failure, the Initial Purchaser or any Holder
may obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the
obligations of the Company with respect to the Registration Statements pursuant
to Sections 2(a) and 2(b) hereof, the Company shall:
(a) prepare and file with the Commission a Registration
Statement or Registration Statements as prescribed by Sections 2(a)
and 2(b) within the relevant time periods specified in Section 2
hereof on the appropriate form under the Act, which form (i) shall be
selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Registrable Securities
by the selling Holders and (iii) shall comply as to form in all
material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required
by the Commission to be filed therewith, and the Company shall use its
best efforts to cause such Registration Statement to become effective
and remain effective in accordance with Section 2; provided, however,
that if (1) such filing is pursuant to Section 2(b), or (2) a
Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2(a) is required to be delivered under the Act by
any Participating Broker-Dealer who seeks to sell
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Exchange Notes, before filing any Registration Statement or Prospectus
or any amendments or supplements thereto, the Company, if requested,
shall furnish to and afford the Holders and each such Participating
Broker-Dealer, as the case may be, covered by such Registration
Statement, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed at least five
business days prior to such filing. The Company shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders, pursuant to this Agreement,
must be afforded an opportunity to review prior to the filing of such
document, if the Majority Holders or such Participating Broker-Dealer,
as the case may be, their counsel or the managing underwriters, if
any, shall reasonably object;
(b) subject to Section 3(a) hereof, prepare and file with
the Commission such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration
Statement effective for the Effectiveness Period or the Applicable
Period, as the case may be, and cause each Prospectus to be
supplemented by any required prospectus supplement and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Act, and comply with the provisions
of the Act, the Exchange Act and the rules and regulations promulgated
thereunder applicable to it with respect to the disposition of all
securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales
by any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder, at least five business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is
being filed and advising such Holder that the distribution of
Registrable Securities will be made in accordance with the method
selected by the Majority Holders, (ii) furnish to each Holder and to
each underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each Prospectus,
including each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities, and (iii) subject to the
last paragraph of this Section 3, consent to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders
in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or any amendment or supplement thereto,
provided that such use complies with all applicable laws and
regulations;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities or "blue
sky" laws of such jurisdictions as any Holder of
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Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities
shall reasonably request by the time the applicable Registration
Statement is declared effective by the Commission, and do any and all
other acts and things which may be reasonably necessary or advisable
to enable such Holder and underwriter to consummate the disposition in
each such jurisdiction of such Registrable Securities owned by such
Holder; provided, however, that the Company shall not be required to
(i) qualify as a foreign partnership or foreign corporation or as a
dealer in securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d), (ii) file any
general consent to service of process in any jurisdiction where it
would not otherwise be subject to such service of process or (iii)
subject itself to taxation in any such jurisdiction if it is not then
so subject;
(e) in the case of (A) a Shelf Registration or (B)
Participating Broker-Dealers who have notified the Company that they
will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, are seeking
to sell Exchange Notes and are required to deliver Prospectuses,
notify each Holder, or such Participating Broker-Dealers, as the case
may be, their counsel and the managing underwriters, if any, promptly
and, if requested by such Holder or Participating Broker-Dealer,
confirm such notice in writing (i) when a Registration Statement has
become effective and when any post-effective amendments and
supplements thereto become effective, (ii) of any request by the
Commission or any state securities authority for amendments and
supplements to a Registration Statement or Prospectus or for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the Commission or any state
securities authority of any stop order suspending the effectiveness of
a Registration Statement or the initiation of any proceedings for that
purpose, (iv) in the case of a Shelf Registration, if, between the
effective date of a Registration Statement and the closing of any sale
of Registrable Securities covered thereby, the representations and
warranties of the Company contained in any underwriting agreement,
securities sales agreement or other similar agreement, if any,
relating to such offering cease to be true and correct in all material
respects, (v) if the Company receives any notification with respect to
the suspension of the qualification of the Registrable Securities or
the Exchange Notes to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction or the initiation of any proceeding
for such purpose, (vi) of the happening of any event or the failure of
any event to occur or the discovery of any facts or otherwise, during
the period a Shelf Registration Statement is effective or the
Applicable Period, as the case may be, which makes any statement made
in the Shelf Registration Statement, the Exchange Offer Registration
Statement or any related Prospectus untrue in any material respect or
which causes such Registration Statement or Prospectus, as the case
may be, to omit to state a material fact necessary to make the
statements therein, in the case of a Prospectus in light of the
circumstances under which they were made, not misleading and (vii) the
Company's reasonable
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determination that a post-effective amendment to the Registration
Statement would be appropriate;
(f) make every effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) in the case of a Shelf Registration, furnish to each
Holder, upon request and without charge, at least one conformed copy
of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or
exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with
the selling Holders to facilitate the timely preparation and delivery
of certificates, if any, representing Registrable Securities to be
sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with the Depository; and cause
such Registrable Securities to be in such denominations (consistent
with the provisions of the Indenture) and registered in such names as
the selling Holders or the managing underwriters may reasonably
request at least two business days prior to the closing of any sale of
Registrable Securities;
(i) subject to Section 3(a) hereof and the second
paragraph of Section 2(e) hereof, in the case of a Shelf Registration
or an Exchange Offer Registration, upon the occurrence of any
circumstance contemplated by Section 3(e)(ii), 3(e)(iii), 3(e)(iv),
3(e)(v), 3(e)(vi) or 3(e)(vii) hereof, use its best efforts to prepare
a supplement or post-effective amendment to the Registration Statement
and the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. The Company agrees to notify each Holder to suspend
use of the Prospectus as promptly as practicable after the occurrence
of any such circumstance, and each Holder hereby agrees to suspend use
of the Prospectus until the Company has amended or supplemented the
Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, upon request and without charge, a
reasonable number of copies of any document which is incorporated by
reference into or is an exhibit to a Registration Statement or a
Prospectus after the initial filing of a Registration Statement;
(k) obtain a CUSIP number for all Exchange Notes or
Registrable Securities, as the case may be, not later than the
effective date of a Registration
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Statement, and provide the Trustee with printed certificates for the
Exchange Notes or the Registrable Securities, as the case may be, in a
form eligible for deposit with the Depository;
(l) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Notes or Registrable
Securities, as the case may be, cooperate with the Trustee and the
Holders to effect such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with the terms of the
TIA and execute, and use its best efforts to cause the Trustee to
execute, all documents as may be required to effect such changes, and
all other forms and documents required to be filed with the Commission
to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such
agreements (including underwriting agreements) as are customary in
underwritten public offerings and take all such other appropriate
actions as are reasonably requested in order to expedite or facilitate
the registration or the disposition of such Registrable Securities,
and in such connection, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration: (i) make such representations and warranties to Holders
of such Registrable Securities and the underwriters (if any), with
respect to the business of the Company and its subsidiaries and the
Registration Statement, the Prospectus and all documents, if any,
incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten public offerings, and confirm the same if and when
reasonably requested; (ii) obtain customary opinions of counsel to the
Company and updates thereof in form and substance reasonably
satisfactory to the managing underwriters (if any) and the Majority
Holders, addressed to each selling Holder and the underwriters (if
any) covering the matters customarily covered in opinions requested in
underwritten public offerings and such other matters as may be
reasonably requested by such Holders and underwriters; (iii) obtain
"cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired or to be
acquired by the Company for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to the selling Holders of Registrable Securities
and to each of the underwriters, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten public offerings; and (iv) if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those
set forth in Section 4 hereof (or such other provisions and procedures
acceptable to the Majority Holders and the managing underwriters or
agents) with respect to all parties to be indemnified pursuant to said
Section. The
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above shall be done at each closing under such underwriting agreement,
or as and to the extent required thereunder;
(n) if (A) a Shelf Registration is filed pursuant to
Section 2(b) or (B) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2(a) is required to
be delivered under the Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period, make
available for inspection by any selling Holder of such Registrable
Securities being sold, or each such Participating Broker-Dealer, as
the case may be, any underwriter participating in any such disposition
of Registrable Securities, if any, and any attorney, accountant or
other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information in each
case reasonably requested by any such Inspector in connection with
such Registration Statement. Records which the Company determines, in
good faith, to be confidential and as to which they notify the
Inspectors are confidential shall not be disclosed by the Inspectors
unless, after prior consultation with the Company, (i) the disclosure
of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to an effective subpoena
or other order from a court of competent jurisdiction or (iii) the
information in such Records has been made generally available to the
public, other than as a result of a breach of confidentiality or
secrecy to the Company. Each selling Holder of such Registrable
Securities and each such Participating Broker-Dealer will be required
to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it
as the basis for any market transactions in the securities of the
Company unless and until such is made generally available to the
public, other than as a result of a breach of confidentiality or
secrecy to the Company. Each selling Holder of such Registrable
Securities and each such Participating Broker- Dealer will be required
to further agree that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction or is otherwise
required in the opinion of such Participating Broker- Dealer, give
notice to the Company and allow the Company at its expense to
undertake appropriate action to prevent disclosure of the Records
deemed confidential;
(o) comply with all applicable rules and regulations of
the Commission and, as soon as reasonably practicable, make generally
available to the Holders earnings statements of the Company covering
at least 12 months satisfying the
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provisions of Section 11(a) of the Act and Rule 158 thereunder (or any
similar rule promulgated under the Act);
(p) upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Registrable Securities
participating in the Exchange Offer or the Private Exchange, as the
case may be, and which includes an opinion that (i) the Company has
duly authorized, executed and delivered the Exchange Notes and Private
Exchange Notes and the Indenture, as the case may be, and (ii) each of
the Exchange Notes or the Private Exchange Notes and the Indenture, as
the case may be, constitute a legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with its
respective terms (in each case, with customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Company shall xxxx, or cause to be marked, on such
Registrable Securities delivered by such Holders that such Registrable
Securities are being cancelled in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the NASD;
(s) use its best efforts to take all other steps
necessary to effect the registration of the Registrable Securities
covered by a Registration Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer
Registration Statement (i) include in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," which shall
contain a summary statement of the positions taken or policies made by
the staff of the Commission with respect to the potential "underwriter"
status of any broker-dealer (a "Participating Broker-Dealer") that
holds Registrable Securities acquired for its own account as a result
of market-making activities or other trading activities and that will
be the beneficial owner (as defined in Rule 13d-3 under the Exchange
Act) of Exchange Notes to be received by such broker-dealer in the
Exchange Offer, whether such positions or policies have been publicly
disseminated by the staff of the Commission or such positions or
policies represent the prevailing views of the staff of the Commission,
including a statement
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that any such broker-dealer who receives Exchange Notes for Registrable
Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of
the Act in connection with any resale of such Exchange Notes, (ii)
furnish to each Participating Broker-Dealer who has delivered to the
Company the notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any amendment or
supplement thereto, as such Participating Broker-Dealer may reasonably
request, (iii) subject to the last paragraph of this Section 3, hereby
consent to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any
Person subject to the prospectus delivery requirements of the
Commission, including all Participating Broker-Dealers, in connection
with the sale or transfer of the Exchange Notes covered by the
Prospectus or any amendment or supplement thereto, (iv) use its best
efforts to keep the Exchange Offer Registration Statement effective and
to amend and supplement the Prospectus contained therein, in order to
permit such Prospectus to be lawfully delivered by all Persons subject
to the prospectus delivery requirements of the Act for such period of
time as such Persons must comply with such requirements in order to
resell the Exchange Notes (provided, however, that such period shall
not be required to exceed 180 days, or such longer period if extended
pursuant to the last sentence of this Section 3 (the "Applicable
Period")), and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree all necessary
information for such offeree to participate in the Exchange Offer;
(B) in the case of any Exchange Offer Registration
Statement, the Company agrees to deliver to each Participating
Broker-Dealer upon consummation of the Exchange Offer (i) an opinion
of counsel substantially in the form attached hereto as Exhibit A,
(ii) an Officers' Certificate containing certifications substantially
similar to those set forth in Section 8(d) of the Purchase Agreement
and such additional certifications as are customarily delivered in a
public offering of debt securities, and (iii) a comfort letter in
customary form permitted by Statement of Auditing Standards No. 72 of
the American Institute of Certified Public Accountants.
The Company may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing. The Company may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
In the case of (i) a Shelf Registration Statement or (ii)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(t) hereof, are seeking
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to sell Exchange Notes and are required to deliver copies of such Prospectus,
each Holder agrees that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 3(e)(ii), 3(e)(iii),
3(e)(iv), 3(e)(v), 3(e)(vi) or 3(e)(vii) hereof, such Holder will forthwith
discontinue disposition of Registrable Securities pursuant to a Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 3(i) hereof or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and, if so directed by the Company, such Holder will deliver to the
Company (at the Company's expense) all copies in such Holder's possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities or Exchange Notes, as the case
may be, current at the time of receipt of such notice. If the Company shall
give any such notice to suspend the disposition of Registrable Securities or
Exchange Notes, as the case may be, pursuant to a Registration Statement as a
result of the happening of any event of the kind described in Section 3(e)(ii),
3(e)(iii), 3(e)(iv), 3(e)(v), 3(e)(vi) or 3(e)(vii) hereof, the Company shall
use its best efforts to file and have declared effective (if an amendment) as
soon as practicable an amendment or supplement to the Registration Statement
and shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and
including the date when the Company shall have made available to the Holders
copies of the supplemented or amended Prospectus necessary to resume such
dispositions or shall have advised the Holders in writing that the use of the
applicable Prospectus may be resumed.
4. Indemnification and Contribution. (a) The Company
shall indemnify and hold harmless each Holder, each Participating
Broker-Dealer, each underwriter who participates in an offering of Registrable
Securities, the Initial Purchaser, each of their respective affiliates, each
Person, if any, who controls any of such parties within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, and each of their respective
directors, officers, partners, employees, representatives and agents, to the
fullest extent lawful as follows:
(i) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, arising
out of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or any amendment thereto
pursuant to which the offer and sale of the Registrable Securities or
Exchange Notes were registered under the Act including all documents
incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading, or arising
out of any untrue statement or alleged untrue statement of a material
fact contained in any Prospectus or any amendment or supplement
thereto, or the omission or alleged omission therefrom of a material
fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
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(ii) from and against any and all loss, liability, claim,
damage and expense whatsoever, joint or several, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation,
or any investigation or proceeding by any court or governmental agency
or body, whether commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if and only if such settlement is
effected with the prior written consent of the Company; and
(iii) from and against any and all expenses whatsoever
(including reasonable fees and disbursements of counsel chosen by such
Initial Purchaser, Holder, Participating Broker-Dealer or underwriter
(except to the extent otherwise expressly provided in Section 4(c)
hereof)), as incurred, reasonably incurred in investigating, preparing
for or defending against any litigation, or any investigation or
proceeding by any court or governmental agency or body, whether
commenced or threatened, and any amount paid in settlement thereof, or
any other claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) of this Section 4(a);
provided, however, that as to any Holder, Participating Broker-Dealer or
underwriter, this indemnity does not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission (i) made solely in reliance upon and in
conformity with written information furnished to the Company by such Holder,
such Participating Broker-Dealer or such underwriter in writing expressly for
use in the Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto) or (ii) contained in any preliminary
prospectus or any Prospectus if such Holder, such Participating Broker-Dealer
or such underwriter failed to send or deliver a copy of the Prospectus (as then
amended or supplemented if the Company shall have timely furnished any
amendments or supplements thereto) to the Person asserting such losses,
liabilities, claims or damages on or prior to the delivery of written
confirmation of any sale of securities covered thereby to such Person in any
case where such delivery is required by the Act and it shall have been finally
judicially determined by a court of competent jurisdiction that such Prospectus
(as so amended or supplemented) would have corrected such untrue statement or
omission and the delivery thereof would have eliminated such losses,
liabilities, claims, damages or expenses. Any amounts advanced by the Company
to an indemnified party pursuant to this Section 4 as a result of such losses
shall be returned to the Company if it shall be finally judicially determined
by such a court in a judgment not subject to appeal or final review that such
indemnified party was not entitled to indemnification by the Company.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Company, each underwriter who participates in
an offering of Registrable Securities, the other selling Holders and the
Initial Purchaser and each of their respective
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directors, officers (including each officer of the Company who signed the
Registration Statement), employees, representatives and agents, and each
Person, if any, who controls the Company, the Initial Purchaser, any
underwriter or any other selling Holder within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, from and against any and all loss,
liability, claim, damage and expense whatsoever described in the indemnity
contained in Section 4(a) hereof, as reasonably incurred, but only with respect
to untrue statements or omissions, or alleged untrue statements or omissions,
made in a Shelf Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto) contained in a Shelf
Registration Statement solely in reliance upon and in conformity with written
information furnished to the Company by such selling Holder expressly for use
in the Registration Statement (or any amendment thereto) or any such Prospectus
(or any amendment or supplement thereto); provided, however, that no such
Holder shall be liable for any claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Registrable Securities
pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party (but failure to notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have other than on account
of this indemnity agreement). An indemnifying party may participate, at its
own expense, in the defense of any such action. If an indemnifying party so
elects within a reasonable time after receipt of such notice, such indemnifying
party, jointly with any other indemnifying party, may assume the defense of
such action with counsel chosen by it and reasonably satisfactory to the
indemnified parties defendant in such action; provided, however, that if any
such indemnified party reasonably determines, upon written advice of counsel,
that there may be legal defenses available to such indemnified party which are
different from or in addition to those available to such indemnifying party or
that representation of such indemnifying party and any indemnified party by the
same counsel would present a conflict of interest, then such indemnifying party
or parties shall not so be entitled to assume such defense. If an indemnifying
party is not so entitled to assume the defense of such action, counsel for such
indemnifying party shall be entitled to conduct the defense of such
indemnifying party and counsel for each indemnified party or parties shall be
entitled to conduct the defense of such indemnified party or parties. If an
indemnifying party assumes the defense of an action in accordance with and as
permitted by the provisions of this Section 4(c), such indemnifying party shall
not be liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) for all indemnified parties in
connection with any one action, or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. No indemnifying party shall, without the prior written consent
of the
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indemnified parties, which consent shall not be unreasonably withheld, settle
or compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 4, unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Notwithstanding any payment or payments made by the
Company hereunder, the Company hereby expressly waives subrogation to, and
agrees that it shall not be entitled to be subrogated to, any of the rights of
any indemnified party against the Company or any other right of offset held by
any indemnified party for the payment of any amounts owed to any indemnified
party pursuant to this Section 4; provided, however, that if any of the
foregoing provisions of this paragraph are held to be contrary to applicable
law or unenforceable by a court of competent jurisdiction, the Company hereby
expressly agrees that any right of subrogation or contribution that the Company
may have as a result of such applicable law or unenforceability, as the case
may be, shall be subordinate in right of payment to the payment in full in cash
of all amounts owed to any indemnified party pursuant to this Section 4.
(e) If the indemnification provided for in this Section 4
is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party or parties
on the one hand and the indemnified party or parties on the other hand in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, or (ii) if the allocation provided by
clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative fault referred to in clause (i)
above but also other relevant equitable considerations. The relative fault of
the Company on the one hand and the Holders and any other indemnity parties on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
the Company or by another indemnifying party, and the respective parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Holders and any other indemnifying parties
agree that it would not be just and equitable if contribution pursuant to this
Section 4 were determined by pro rata allocation (even if the Holders were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations
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referred to above in this Section 4(e). The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4(e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing for or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 4(e), the
Initial Purchaser shall not be required to contribute any amount in excess of
the amount by which the total discount received by the Initial Purchaser in
respect of the purchase price of the Notes purchased by it from the Company
exceeds the amount of any damages which the Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4(e), each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
the Initial Purchaser, and each director of the Company and each officer of the
Company who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act shall have the same rights to contribution as the Company.
5. Participation in Underwritten Registrations. No
Holder may participate in any underwritten registration hereunder unless such
Holder (a) agrees to sell such Holder's Registrable Securities on the basis
provided in any customary underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents reasonably required in
connection with such underwriting arrangements.
6. Selection of Underwriters. In any underwritten
offering, the underwriter or underwriters and manager or managers that will
administer the offering will be selected by the Majority Holders; provided,
however, that such underwriters and managers must be reasonably satisfactory to
the Company.
7. Miscellaneous.
(a) No Inconsistent Agreements. The Company hereby
represents that it is not party to nor will the Company on or after the date of
this Agreement enter into any
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agreement that is inconsistent with the rights granted in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of Holders of at least a majority of the then outstanding (as
determined under the Indenture) aggregate principal amount of the Registrable
Securities; provided, however, that no amendment, modification or supplement or
waiver or consent to the departure with respect to the provisions of Section 4
hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder of Registrable Securities.
(c) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
sent by registered or certified mail, postage prepaid, sent by any national
courier service guaranteeing overnight delivery or transmitted by any standard
form of telecommunication, as follows: (i) if to a Holder, at the most current
address given by such Holder to the Company in accordance with the provisions
of this Section 7(c), which address, with respect to the Initial Purchaser,
shall initially be the address provided for the Initial Purchaser in the
Purchase Agreement; and (ii) if to the Company, at its address as set forth in
the Purchase Agreement, or at such other address provided in accordance with
the provisions of this Section 7(c).
All such notices and communications shall be deemed to have
been duly given at the earlier of: (i) the time of actual receipt by the
addressee; or (ii) the time delivered, if personally delivered, or five
business days after being sent by registered or certified mail, postage
prepaid, if mailed, or when answered back, if telexed, or when transmission is
confirmed, if telecopied, or on the next business day, if timely delivered to a
national courier service guaranteeing overnight delivery.
Copies of all notices, demands, or other communications shall
be concurrently delivered by the Person giving the same to the Trustee at its
address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of the Initial Purchaser, including, without limitation and without the need
for an express assignment, subsequent Holders; provided, however, that nothing
herein shall be deemed to permit any assignment, transfer or other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement
or the Indenture. If any transferee of any Holder shall acquire Registrable
Securities, in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed
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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.
(e) Third Party Beneficiary. The Holders shall be third
party beneficiaries of the agreements made hereunder between the Company, on
the one hand, and the Initial Purchaser, on the other hand, and the Holders
shall have the right to enforce such agreements directly to the extent they
deem such enforcement necessary or advisable to protect their rights or the
rights of any of the other Holders.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(h) 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.
(i) Notes Held by the Company or its Affiliates.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the Company or any affiliate of the Company (as such term is defined in Rule
405 under the Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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(j) Counterparts. This Agreement may be executed in one
or more counterparts and, when so executed, all such counterparts taken
together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first written above.
ICO, INC.
By:_____________________________________
Name:
Title:
Accepted as of the
date first above written:
BEAR, XXXXXXX & CO. INC.
By:_________________________________
Name:
Title:
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Exhibit A
Form of Opinion of Counsel
1. Each of the Exchange Offer Registration Statement and
the Prospectus (other than the financial statements, notes or schedules thereto
and other financial and statistical data and supplemental schedules included or
referred to therein or omitted therefrom and the Form T-1, as to which such
counsel need express no opinion), complies as to form in all material respects
with the applicable requirements of the Act and the applicable rules and
regulations promulgated under the Act.
Such counsel may also state that because the primary
purpose of such counsel's engagement was not to establish or confirm factual
matters or financial or accounting data and because of the wholly or partially
non- legal character of many of the statements contained or incorporated by
reference in the Exchange Offer Registration Statement, such counsel is not
passing upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained or incorporated by
reference in the Exchange Offer Registration Statement, and such counsel has
not independently verified the accuracy, completeness or fairness of such
statements. Without limiting the generality of the foregoing, such counsel may
state that such counsel assumes no responsibility for and has not independently
verified the accuracy, completeness or fairness of the financial statements and
other financial and accounting data included or incorporated by reference in
the Exchange Offer Registration Statement, and that such counsel has not
examined the financial or accounting records from which such financial
statements, and other financial or accounting data are derived. However, such
counsel shall state that such counsel has participated in the preparation of
the Exchange Offer Registration Statement and conferences with officers and
other representatives of the Company and representatives of the independent
public accountants of the Company, at which the contents of the Exchange Offer
Registration Statement and related matters were discussed. Such counsel shall
also state that such counsel has reviewed certain corporate documents furnished
to such counsel by the Company. Such counsel shall state that based on such
participation and review (relying as to materiality to a large extent upon the
officers and other representatives of the Company), no facts have come to the
attention of such counsel that cause such counsel to believe that the Exchange
Offer Registration Statement, as of its date or as of the date of such
statement, contained or contains an untrue statement of a material fact or
omitted or omits to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
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