Exhibit 4.6
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JULY 30, 2002
BY AND BETWEEN
XXXX & XXXXXX, INC.
AS ISSUER
AND
BMO XXXXXXX XXXXX CORP.
This Registration Rights Agreement (this "Agreement") is made
and entered into as of July 30, 2002, by and between Xxxx & Talbot, Inc., a
Delaware corporation (the "Company"), and BMO Xxxxxxx Xxxxx Corp. (the "Initial
Purchaser"), who has agreed to purchase the Company's 8 3/8% Senior Notes due
2013 (the "Series A Notes") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement, dated
July 23, 2002 (the "Purchase Agreement"), by and between the Company and the
Initial Purchaser. In order to induce the Initial Purchaser to purchase the
Series A Notes, the Company has 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 Purchaser set forth in Section 6(g)
of the Purchase Agreement. Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to them in the Indenture, dated the
date hereof between the Company and X.X. Xxxxxx Trust Company, National
Association, as Trustee, relating to the Series A Notes and the Series B 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.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Business Day: Any day except a Saturday, Sunday or other day in the
City of New York, or in the city of the corporate trust office of the Trustee,
on which banks are authorized to close.
Certificated Securities: Definitive Notes, as defined in the
Indenture.
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 Series B 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 Series B Notes in the same aggregate
principal amount as the
-2-
aggregate principal amount of Series A Notes tendered by Holders thereof
pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: the Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Company of a
principal amount of Series B Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Series A Notes that are tendered 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.
Exempt Resales: The transaction in which the Initial Purchaser
proposes to sell the Series A Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act and pursuant to Regulation S
under the Act.
Filing Deadline: As defined in Section 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Interest Payment Date: As defined in the Indenture and the Notes.
Holders: As defined in Section 2 hereof.
Interest Payment Date: As defined in the Indenture and the Notes.
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(e) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Series B Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted 8 3/8% Senior Notes
pursuant to the Shelf Registration Statement, in each case (i) that is filed
pursuant to the provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Rule 144: Rule 144 promulgated under the Act.
-3-
Series B Notes: The Company's 8 3/8% Series B Senior Notes due 2013
to be issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(e) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted 8 3/8% Senior Notes: (i) Each Series A Note,
until the earliest to occur of (a) the date on which such Series A Note is
exchanged in the Exchange Offer for a Series B Note which is entitled to be
resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (b) the date on which such Series A Note has
been disposed of in accordance with a Shelf Registration Statement, or (c) the
date on which such Series A Note is distributed to the public pursuant to Rule
144 under the Act and (ii) each Series B Note acquired by a Broker-Dealer in
exchange for a Series A Note acquired for its own account as a result of market
making activities or other trading activities until the date on which such
Series B Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
Section 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted 8 3/8%
Senior Notes (each, a "Holder") whenever such Person owns Transfer Restricted 8
3/8% Senior Notes.
Section 3. REGISTERED EXCHANGE OFFER
(a). Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have
been complied with), the Company shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 45 days
after the Closing Date (such 45th day being the "Filing Deadline"), (ii)
use its reasonable best efforts to cause such Exchange Offer Registration
Statement to become effective at the earliest possible time, but in no
event later than 120 days after the Closing Date (such 120/th/ 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 pursuant to Rule 430A under the Act and (C) cause
all necessary filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky laws of
such jurisdictions as are requested by the Holders and as are necessary to
permit Consummation of the Exchange Offer, and (iv) 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 Series B Notes to be offered in exchange
for the Series A
-4-
Notes that are Transfer Restricted 8 3/8% Senior Notes and (ii) resales of
Series B Notes by Broker-Dealers that tendered into the Exchange Offer
Series A Notes that such Broker-Dealer acquired for its own account as a
result of market making activities or other trading activities (other than
Series A Notes acquired directly from the Company or any of its Affiliates)
as contemplated by Section 3(c) below.
(b). The Company shall use its reasonable best 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 shall cause the
Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Series B Notes shall be included in the
Exchange Offer Registration Statement. The Company shall use its reasonable
best efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 45 business days thereafter unless a
later date is required by federal securities laws (such day 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 Series A Notes that are
Transfer Restricted 8 3/8% Senior Notes that were acquired for the account
of such Broker-Dealer as a result of market-making activities or other
trading activities (other than Series A Notes acquired directly from the
Company or any Affiliate of the Company), may exchange such Transfer
Restricted 8 3/8% Senior Notes 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 8 3/8% Senior Notes held by any such Broker-Dealer,
except to the extent required by the Commission as a result of a change in
policy, rules or regulations after the date of this Agreement.
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 Series B
Notes received by such Broker-Dealer in the Exchange Offer, the Company 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 Series B Notes by
Broker-Dealers, the Company agrees to use its reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented,
amended and current as required by and subject to the provisions of Section 6(a)
and (c) hereof 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 one year from the date on which the Exchange Offer
is Consummated or such shorter period as will terminate when all Transfer
Restricted 8 3/8% Senior Notes covered by such Registration Statement have been
sold pursuant thereto. The
-5-
Company shall provide sufficient copies of the latest version of such Prospectus
to such Broker-Dealers, promptly upon request, and in no event later than one
day after such request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a). Shelf Registration. If (i) the Exchange Offer is not permitted by
applicable law (after the Company have complied with the procedures set
forth in Section 6(a)(i) below) or (ii) if any Holder of Transfer
Restricted 8 3/8% Senior Notes shall notify the Company within 20 business
days following the Consummation of the Exchange Offer that (A) such Holder
was prohibited by law or Commission policy from participating in the
Exchange Offer or (B) such Holder may not resell the Series B 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 Series A Notes acquired
directly from the Company or any of its Affiliates, then the Company shall:
1. use its reasonable best efforts to cause to be filed, on or prior
to 45 days after the earlier of (i) the date on which the Company
determines that the Exchange Offer Registration Statement cannot 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
(such 45/th/ day, the "Filing Deadline"), 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")), relating to all Transfer Restricted 8 3/8%
Senior Notes; and
2. shall use its reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 120 days
after the earlier of (i) the date on which the Company determines that
the Exchange Offer Registration Statement cannot 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 (such 120/th/ day the
"Effectiveness Deadline").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) above, the Company is
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) 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 shall remain obligated to meet the
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 8 3/8% Senior Notes 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 shall use its reasonable best efforts to keep any Shelf
Registration Statement required by this Section 4(a) continuously effective,
supplemented,
-6-
amended and current as required by and subject to the provisions of Sections
6(b) and (c) hereof 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
Sections 6(c)(i) and 6(e)) following the Closing Date, or such shorter period as
will terminate when all Transfer Restricted 8 3/8% Senior Notes covered by such
Shelf Registration Statement have been sold pursuant thereto.
(b). Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted 8 3/8%
Senior Notes may include any of its Transfer Restricted 8 3/8% Senior Notes
in any Shelf Registration Statement pursuant to this Agreement unless and
until such Holder furnishes to the Company in writing, within 20 days after
receipt of a request therefor, the information specified in the Notice and
Questionnaire attached hereto as Exhibit A. No Holder of Transfer
Restricted 8 3/8% Senior Notes shall be entitled to liquidated damages
pursuant to Section 5 hereof unless and until such Holder shall have
provided all such information. By its acceptance of Transfer Restricted 8
3/8% Senior Notes, each 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.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission 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) the
Exchange Offer has not been Consummated on or prior to the Consummation 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 two business days
by a post-effective amendment to such Registration Statement that cures such
failure and that is itself declared effective within five business days of
filing such post-effective amendment to such Registration Statement (each such
event referred to in clauses (i) through (iv), a "Registration Default"), then
the Company hereby agrees to pay to each Holder of Transfer Restricted 8 3/8%
Senior Notes affected thereby liquidated damages in an amount equal to $.05 per
week per $1,000 in principal amount of Transfer Restricted 8 3/8% Senior Notes
held by such Holder for each week or portion thereof that the Registration
Default continues for the first 90-day period immediately following the
occurrence of such Registration Default. The amount of the liquidated damages
shall increase by an additional $.05 per week per $1,000 in principal amount of
Transfer Restricted 8 3/8% Senior Notes with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of liquidated damages of $.50 per week per $1,000 in principal amount of
Transfer Restricted 8 3/8% Senior Notes; provided that the Company shall in no
event be required to pay liquidated damages 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 (i) above, (2)
upon the effectiveness of the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange Offer, in the case of (iii) above, or (4) upon
the filing of a post-effective
-7-
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 (iv) above, the liquidated damages payable with respect to the
Transfer Restricted 8 3/8% Senior Notes as a result of such clause (i), (ii),
(iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid 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 and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted 8 3/8% Senior Notes, all obligations of
the Company to pay liquidated damages with respect to 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 shall (i) comply with all applicable provisions
of Section 6(c) below, (ii) use its reasonable best efforts to effect such
exchange and to permit the resale of Series B Notes by any Broker-Dealer
that tendered Series A Notes in the Exchange Offer that such Broker-Dealer
acquired for its own account as a result of its market making activities or
other trading activities (other than Series A 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 (iii) comply with
all of the following provisions:
1. 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 hereby
agrees to seek a no-action letter or other favorable decision from
the Commission allowing the Company to Consummate an Exchange Offer
for such Transfer Restricted 8 3/8% Senior Notes. The Company hereby
agrees to pursue the issuance of such a decision to the Commission
staff level. In connection with the foregoing, the Company hereby
agrees to take all such other 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.
2. As a condition to its participation in the Exchange Offer, each
Holder of Transfer Restricted 8 3/8% Senior Notes (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 (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
-8-
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 Series B Notes to be issued in
the Exchange Offer and (C) it is acquiring the Series B Notes in its
ordinary course of business. Each Holder using the Exchange Offer to
participate in a distribution of the Series B Notes will be required
to acknowledge and agree that, if the resales are of Series B Notes
obtained by such Holder in exchange for Series A 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.
(b). Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) and 6(d) below and shall:
1. use its reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted 8 3/8% Senior Notes 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 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 8 3/8% Senior Notes in accordance with the intended method
or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof; and
2. issue, upon the request of any Holder or purchaser of Series A
Notes covered by any Shelf Registration Statement contemplated by
this Agreement, Series B Notes having an aggregate principal amount
equal to the aggregate principal amount of Series A Notes sold
pursuant to the Shelf Registration Statement and surrendered to the
Company for cancellation; the Company shall register Series B Notes
on the Shelf Registration Statement for this purpose and issue the
Series B Notes to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall
designate.
(c). General Provisions. In connection with any Registration Statement and
any related Prospectus required by this Agreement, the Company shall:
-9-
1. use its reasonable best efforts to keep such Registration
Statement continuously effective 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 necessary to make the statements therein
not misleading or (B) not to be effective and usable for resale of
Transfer Restricted 8 3/8% Senior Notes during the period required by
this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and, if
Commission review is required, use its reasonable best efforts to
cause such amendment to be declared effective as soon as practicable;
if at any time the Commission shall issue any stop order suspending
the effectiveness of any 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 8 3/8% Senior Notes under state securities or
Blue Sky laws, the Company shall use its reasonable best efforts to
obtain the withdrawal or lifting of such order at the earliest
possible time;
2. 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;
3. in connection with any sale of Transfer Restricted 8 3/8% Senior
Notes that will result in such securities no longer being Transfer
Restricted 8 3/8% Senior Notes, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted 8 3/8% Senior Notes to be sold and
not bearing any restrictive legends; and to register such Transfer
Restricted 8 3/8% Senior Notes in such denominations and such names
as the selling Holders may request at least two business days prior
to such sale of Transfer Restricted 8 3/8% Senior Notes;
4. use its reasonable best efforts to cause the disposition of the
Transfer Restricted 8 3/8% Senior Notes 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 8 3/8% Senior Notes; provided, however, that the
Company 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
-10-
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
5. provide a CUSIP number for all Transfer Restricted 8 3/8% Senior
Notes not later than the effective date of a Registration Statement
covering such Transfer Restricted 8 3/8% Senior Notes and provide the
Trustee under the Indenture with certificates for the Transfer
Restricted 8 3/8% Senior Notes which are in a form eligible for
deposit with The Depository Trust Company, Euroclear or Clearstream;
6. otherwise use its reasonable best 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
(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); and
7. 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 best 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.
(d). Additional Provisions Applicable to Shelf Registration Statements and
Certain Exchange Offer Prospectuses. In connection with each Shelf
Registration Statement, and except as limited in Section 6(d)(8), each
Exchange Offer Registration Statement if and to the extent that the Initial
Purchaser has notified the Company that it is a holder of Series B Notes
that are Transfer Restricted 8 3/8% Senior Notes (for so long as such
Series B Notes are Transfer Restricted 8 3/8% Senior Notes or for the
period provided in Section 3, whichever is shorter), the Company shall:
1. advise each Holder promptly 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 8 3/8% Senior Notes for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that
-11-
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
document incorporated by reference therein untrue, or that requires
the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or
that requires the making of any additions to or changes in the
Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
2. if any fact or event contemplated by Section 6(d)(i)(D) above
shall exist or have occurred, prepare a supplement or post-effective
amendment 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 8 3/8% Senior Notes, 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;
3. furnish to each Holder in connection with such exchange or sale,
if any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein (except the Prospectus
included in the Exchange Offer Registration Statement at the time it
was declared effective) or any amendments or supplements to any such
Registration Statement or Prospectus, which documents will be subject
to the review and comment of such Holders in connection with such
sale, if any, for a period of at least five 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 five
business days after the receipt thereof;
4. make available, at reasonable times, for inspection by each
Holder and any attorney or accountant retained by such Holders, all
financial and other records, pertinent corporate documents of the
Company and cause the Company's 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;
5. if requested by any Holders in connection with such exchange 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 8 3/8%
Senior Notes; 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;
-12-
6. furnish to each Holder in connection with such exchange 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;
7. deliver to each Holder without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment
or supplement thereto as such Persons reasonably may request; the
Company hereby consents to the use (in accordance with law) 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 8 3/8% Senior Notes covered by the Prospectus or any
amendment or supplement thereto;
8. in the case of a Shelf Registration Statement, upon the request
of Holders who own a majority in aggregate principal amount of the
Transfer Restricted 8 3/8% Senior Notes at the time outstanding,
enter into such agreements (including underwriting agreements) 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 8 3/8% Senior Notes
pursuant to a Shelf Registration Statement as may be reasonably
requested by such Holders in connection with any sale or resale
pursuant to a Shelf Registration Statement. In such connection, the
Company shall:
a. upon request of Holders who own a majority in aggregate
principal amount of the Transfer Restricted 8 3/8% Senior Notes
at the time outstanding, furnish to each Holder (or in the case
of paragraphs (2) and (3), use its reasonable best efforts to
cause to be furnished to Holders requesting such items), upon the
effectiveness of the Shelf Registration Statement:
(1) a certificate, dated such date, signed on behalf of
the Company by (x) the President or any Vice President and
(y) a principal financial or accounting officer of the
Company, confirming, as of the date thereof, the matters set
forth in Sections 2(a) (to the extent they relate to the
Shelf Registration Statement), 2(g) and 2(q) of the Purchase
Agreement and such other similar matters as such Holders may
reasonably request;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement, of counsel for the Company in
customary form and covering such matters of the type
customarily covered by such an opinion as the requesting
Holders 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, representatives of the independent public
accountants for the Company and although such counsel has
not independently verified the accuracy, completeness or
fairness of such statements, such counsel advises that, on
the basis of the
-13-
foregoing, 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, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date, 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. Without limiting the foregoing, 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 and other financial data
included in such Registration Statement or the related
Prospectus; and
(3) a customary comfort letter, dated as of the date of
effectiveness of the Shelf Registration Statement, 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
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 pursuant to this clause (8); and
9. prior to any public offering of Transfer Restricted 8 3/8% Senior
Notes, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted 8 3/8% Senior Notes 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 8 3/8%
Senior Notes covered by the applicable Registration Statement;
provided, however, that the Company 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.
(e). Restrictions on Holders. Each Holder's acquisition of a Transfer
Restricted Security constitutes such Holder's agreement that, upon receipt
of the notice referred to in Section 6(d)(i)(C) or any notice from the
Company of the existence of any fact of the kind described in Section
6(d)(i)(D) hereof (in each case, a "Suspension Notice"), such
-14-
Holder will forthwith discontinue disposition of Transfer Restricted 8 3/8%
Senior Notes pursuant to the applicable Registration Statement until (i)
such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(d)(ii) 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 shall be
required to either (i) destroy any Prospectuses, other than 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 8 3/8% Senior Notes 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 date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a). All expenses incident to the Company's 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 certificates for the Series
B 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 one counsel for the Holders
of Transfer Restricted 8 3/8% Senior Notes which shall be Xxxxxx & Xxxxxxx
or such other counsel as may be selected by a majority of such Holders; (v)
all application and filing fees in connection with listing the Series B
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 (including the
expenses of any special audit and comfort letters required by or incident
to such performance).
The Company will, in any event, bear its 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.
(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 will reimburse
the Initial Purchaser and the Holders of Transfer Restricted 8 3/8% Senior
Notes who are tendering Series A Notes into in the Exchange Offer and/or
selling or reselling Series A Notes or Series B 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
-15-
disbursements of not more than one counsel, who shall be Xxxxxx & Xxxxxxx
unless another firm shall be chosen by the Holders of a majority in
principal amount of the Transfer Restricted 8 3/8% Senior Notes for whose
benefit such Registration Statement is being prepared.
(c). Notwithstanding the foregoing, the Holders of the securities being
registered shall pay all agency fees and commissions and underwriting
discounts and commissions attributable to the sale of such securities and
the fees and disbursements of any counsel or other advisors or experts
retained by such Holders (severally or jointly), other than the counsel
specifically referred to above.
SECTION 8. INDEMNIFICATION
(a). The Company agrees, to indemnify and hold harmless each Holder, its
directors, officers and each Person, if any, who controls such Holder
(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 (or any amendment or
supplement thereto) provided by the Company to any Holder or any
prospective purchaser of Series B Notes or registered Series A Notes, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
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 Holders furnished in writing to the Company by any of the Holders.
(b). By its acquisition of Transfer Restricted 8 3/8% Senior Notes, each
Holder of Transfer Restricted 8 3/8% Senior Notes agrees, severally and not
jointly, to indemnify and hold harmless the Company, and its 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 to the
same extent as the foregoing indemnity from the Company set forth in
section (a) above, but only with reference to information relating to such
Holder furnished in writing to the Company by such Holder expressly for use
in any Registration Statement. In no event shall any Holder, its directors,
officers or any Person who controls such Holder be liable or responsible
for any amount in excess of the amount by which the total amount received
by such Holder with respect to its sale of Transfer Restricted 8 3/8%
Senior Notes pursuant to a Registration Statement exceeds (i) the amount
paid by such Holder for such Transfer Restricted 8 3/8% Senior Notes and
(ii) the amount of any damages that such Holder, its directors, officers or
any Person who controls such Holder 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
-16-
indemnified party shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying person") in writing 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 Holder 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 Holder). 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 shall
have been specifically authorized in writing by the indemnifying party,
(ii) the indemnifying party shall have 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 shall have 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 Holders, in the case of the
parties indemnified pursuant to Section 8(a), and by the Company, 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 effected with its written consent.
No indemnifying party shall, without the prior written consent of the
indemnified party, 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 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 on the one hand, and the Holders, on the other hand, from
their initial sale of Transfer
-17-
Restricted 8 3/8% Senior Notes (or in the case of Series B Notes that are
Transfer Restricted 8 3/8% Senior Notes, the sale of the Series A Notes for
which such Series B Notes were exchanged) or (ii) if the allocation
provided by clause 8(d)(i) 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 on the one hand, and of the Holder, 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 on the one
hand, and of the Holder, 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 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 applicable
limitations set forth in this Section 8, any legal or other fees or
expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.
The Company and by its acquisition of Transfer Restricted 8 3/8%
Senior Notes, each Holder 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 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 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 Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted 8 3/8% Senior Notes pursuant to a Registration Statement exceeds (i)
the amount paid by such Holder for such Transfer Restricted 8 3/8% Senior Notes
and (ii) the amount of any damages which such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Transfer Restricted 8 3/8%
Senior Notes held by each Holder hereunder and not joint.
SECTION 9. RULE 144A AND RULE 144
The Company agrees with each Holder, for so long as any Transfer
Restricted 8 3/8% Senior Notes remain outstanding and during any period in which
the Company (i) is not subject to Section 13 or 15(d) of the Exchange Act, to
make available, upon request of any
-18-
Holder, to such Holder or beneficial owner of Transfer Restricted 8 3/8% Senior
Notes in connection with any sale thereof and any prospective purchaser of such
Transfer Restricted 8 3/8% Senior Notes 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 8 3/8% Senior Notes pursuant to Rule
144A, and (ii) is subject to Section 13 or 15(d) of the Exchange Act, to make
all filings required thereby in a timely manner in order to permit resales of
such Transfer Restricted 8 3/8% Senior Notes pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a). Remedies. The Company acknowledges and agrees that any failure by
the Company to comply with its obligations under Sections 3 and 4 hereof
may result in material irreparable injury to the Initial Purchaser 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 Purchaser or any Holder may obtain
such relief as may be required to specifically enforce the Company's
obligations under Sections 3 and 4 hereof. The Company further agrees to
waive the defense in any action for specific performance that a remedy at
law would be adequate.
(b). No Inconsistent Agreements. The Company 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 has not previously entered into 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 securities under any agreement in effect on the
date hereof.
(c). Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of
Section 5 hereof and this Section 10(c)(i), the Company has obtained the
written consent of Holders of all outstanding Transfer Restricted 8 3/8%
Senior Notes 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 8 3/8% Senior Notes
(excluding Transfer Restricted 8 3/8% Senior Notes 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 8 3/8% Senior Notes are being tendered
pursuant to the Exchange Offer, and that does not affect directly or
indirectly the rights of other Holders whose Transfer Restricted 8 3/8%
Senior Notes 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 8 3/8% Senior Notes subject to such Exchange Offer.
(d). Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the
one hand, and the Initial
-19-
Purchaser, 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 their rights hereunder.
(e). 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:
1. 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
2. if to the Company, at 0000 X.X. Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxx 00000, Attention: Xxxxx Xxxx, with a copy (which
shall not constitute notice) to Xxxxxxx Xxxxxxxxx, Stoel Rives LLP,
000 XX Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxx 00000.
All such notices and communications shall be deemed to have been
duly given at the time delivered by hand, 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.
(f). 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, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer
Restricted 8 3/8% Senior Notes in violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall
acquire Transfer Restricted 8 3/8% Senior Notes in any manner, whether by
operation of law or otherwise, such Transfer Restricted 8 3/8% Senior Notes
shall be held subject to all of the terms of this Agreement, and by taking
and holding such Transfer Restricted 8 3/8% Senior Notes 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.
(g). 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.
(h). Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
-20-
(i). 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.
(j). 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.
(k). 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 8 3/8% Senior Notes. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
-21-
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
XXXX & XXXXXX, INC.
By: /s/ XXXXXXX XXXXXXXX
----------------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President and Chief Executive Officer
By: /s/ XXXXX X. XXXX
----------------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President and Chief Financial Officer
BMO XXXXXXX XXXXX CORP.
By: /s/ XXXXX X. XXXXXX
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Executive Managing Director
-22-
Exhibit A
XXXX & TALBOT, INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
_________, 200_
Reference is hereby made to the Registration Rights Agreement (the "Registration
Rights Agreement") between Xxxx & Xxxxxx, Inc. (the "Company") and the Purchaser
named therein. Pursuant to the Registration Rights Agreement, the Company has
filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form __ (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 8 3/8% Senior Notes
due 2013 (the "Securities"). A copy of the Registration Rights Agreement is
attached hereto. All capitalized terms not otherwise defined herein shall have
the meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined below) is entitled
to have the Registrable Securities beneficially owned by it included in the
Shelf Registration Statement. In order to have Registrable Securities included
in the Shelf Registration Statement, this Notice of Registration Statement and
Selling Securityholder Questionnaire ("Notice and Questionnaire") must be
completed, executed and delivered to the Company's counsel at the address set
forth herein for receipt ON OR BEFORE [Deadline for Response]. Beneficial owners
of Registrable Securities who do not complete, execute and return this Notice
and Questionnaire by such date (i) will not be named as selling securityholders
in the Shelf Registration Statement and (ii) may not use the Prospectus forming
a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling securityholder in
the Shelf Registration Statement and related Prospectus. Accordingly, holders
and beneficial owners of Registrable Securities are advised to consult their own
securities law counsel regarding the consequences of being named or not being
named as a selling securityholder in the Shelf Registration Statement and
related Prospectus.
The term "Registrable Securities" means the Series A Notes as defined in the
Registration Rights Agreement.
A-1
ELECTION
The undersigned holder (the "Selling Securityholder") of Registrable Securities
hereby elects to include in the Shelf Registration Statement the Registrable
Securities beneficially owned by it and listed below in Item (3). The
undersigned, by signing and returning this Notice and Questionnaire, agrees to
be bound with respect to such Registrable Securities by the terms and conditions
of this Notice and Questionnaire and the Registration Rights Agreement,
including, without limitation, Section 8 of the Registration Rights Agreement,
as if the undersigned Selling Securityholder were an original party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf Registration
Statement, the Selling Securityholder will be required to deliver to the Company
and Trustee the Notice of Transfer set forth in Exhibit B to the Registration
Rights Agreement.
The Selling Securityholder hereby provides the following information to the
Company and represents and warrants that such information is accurate and
complete:
A-2
QUESTIONNAIRE
(1) (a) Full Legal Name of Selling Securityholder:
(b) Full Legal Name of Registered Holder (if not the same as in (a) above)
of Registrable Securities Listed in Item (3) below:
(c) Full Legal Name of DTC Participant (if applicable and if not the same
as (b) above) Through Which Registrable Securities Listed in Item (3)
below are Held:
(2) Address for Notices to Selling Securityholder:
_________________
_________________
_________________
Telephone: _________________________
Fax: _________________________
Contact Person: _________________________
(3) Beneficial Ownership of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities.
(a) Principal amount of Registrable Securities beneficially owned:__________
CUSIP No(s). of such Registrable Securities:____________________________
(b) Principal amount of Securities other than Registrable Securities
beneficially owned:
________________________________________________________________________
CUSIP No(s). of such other Securities: _________________________________
(c) Principal amount of Registrable Securities which the undersigned wishes
to be included in the Shelf Registration Statement:_____________________
CUSIP No(s). of such Registrable Securities to be included in the Shelf
Registration Statement:_________________________________________________
(4) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any
other securities of the Company, other than the Securities listed
above in Item (3).
State any exceptions here:
A-3
(5) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any of
its affiliates, officers, directors or principal equity holders (5% or
more) has held any position or office or has had any other material
relationship with the Company (or its predecessors or affiliates) during
the past three years.
State any exceptions here:
(6) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item
(3) only as follows (if at all): Such Registrable Securities may be sold
from time to time directly by the undersigned Selling Securityholder or,
alternatively, through underwriters, broker-dealers or agents. Such
Registrable Securities may be sold in one or more transactions at fixed
prices, at prevailing market prices at the time of sale, at varying
prices determined at the time of sale, or at negotiated prices. Such
sales may be effected in transactions (which may involve crosses or
block transactions) (i) on any national securities exchange or quotation
service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the
over-the-counter market, or (iv) through the writing of options. In
connection with sales of the Registrable Securities or otherwise, the
Selling Securityholder may enter into hedging transactions with
broker-dealers, which may in turn engage in short sales of the
Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities
short and deliver Registrable Securities to close out such short
positions, or loan or pledge Registrable Securities to broker-dealers
that in turn may sell such securities.
State any exceptions here:
By signing below, the Selling Securityholder acknowledges that it understands
its obligation to comply, and agrees that it will comply, with the provisions of
the Exchange Act and the rules and regulations thereunder, particularly
Regulation M.
In the event that the Selling Securityholder transfers all or any portion of the
Registrable Securities listed in Item (3) above after the date on which such
information is provided to the Company, the Selling Securityholder agrees to
notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
A-4
By signing below, the Selling Securityholder consents to the disclosure of the
information contained herein in its answers to Items (1) through (6) above and
the inclusion of such information in the Shelf Registration Statement and
related Prospectus. The Selling Securityholder understands that such information
will be relied upon by the Company in connection with the preparation of the
Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under Section 4(b) of
the Registration Rights Agreement to provide such information as may be required
by law for inclusion in the Shelf Registration Statement, the Selling
Securityholder agrees to promptly notify the Company of any inaccuracies or
changes in the information provided herein which may occur subsequent to the
date hereof at any time while the Shelf Registration Statement remains in
effect. All notices hereunder and pursuant to the Registration Rights Agreement
shall be made in writing, by hand-delivery, first-class mail, or air courier
guaranteeing overnight delivery as follows:
(i) To the Company:
Xxxx & Talbot, Inc.
0000 XX Xxxxx Xxx.
Xxxxxxxx, XX 00000
Attn: ________________
(ii) With a copy to:
Stoel Rives LLP
000 XX Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Once this Notice and Questionnaire is executed by the Selling Securityholder and
received by the Company's counsel, the terms of this Notice and Questionnaire,
and the representations and warranties contained herein, shall be binding on,
shall inure to the benefit of and shall be enforceable by the respective
successors, heirs, personal representatives, and assigns of the Company and the
Selling Securityholder (with respect to the Registrable Securities beneficially
owned by such Selling Securityholder and listed in Item (3) above. This
Agreement shall be governed in all respects by the laws of the State of New
York.
A-5
IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this
Notice and Questionnaire to be executed and delivered either in person or by its
duly authorized agent.
Dated: ________________________
_________________________________________________________________
Selling Securityholder
(Print/type full legal name of beneficial owner of Registrable
Securities)
By: _____________________________________________________________
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON
OR BEFORE [DEADLINE FOR RESPONSE] TO THE COMPANY'S COUNSEL AT:
Stoel Rives LLP
000 XX Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
A-6
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Name of Trustee]
Xxxx & Talbot, Inc,
c/o [Name of Trustee]
[Address of Trustee]
Attention: Trust Officer
Re: Xxxx & Xxxxxx, Inc. (the "Company")
8 3/8% Senior Notes due 2013
Dear Sirs:
Please be advised that ____________________ has transferred $___________________
aggregate principal amount of the above-referenced Notes pursuant to an
effective Registration Statement on Form ____ (File No. 333-________) filed by
the Company.
We hereby certify that the prospectus delivery requirements, if any, of the
Securities Act of 1933, as amended, have been satisfied and that the above-named
beneficial owner of the Notes is named as a "Selling Holder" in the Prospectus
dated ____, 200_ or in supplements thereto, and that the aggregate principal
amount of the Notes transferred are the Notes listed in such Prospectus opposite
such owner's name.
Dated:
Very truly yours,
___________________________
(Name)
By: ___________________________
(Authorized Signature)
