EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of July 26, 2004 between Titan International, Inc., an
Illinois corporation (the "Company"), and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxx Xxxxxxx Corp. and LaSalle Debt Capital Markets, a Division
of ABN AMRO Financial Services, Inc. (collectively, the "Initial Purchasers"),
pursuant to the Purchase Agreement, dated July 20, 2004 (the "Purchase
Agreement"), between the Company and the Initial Purchasers, which provides for
the sale by the Company to the Initial Purchasers of an aggregate of $100
million principal amount of the Notes (as defined herein) and grants the Initial
Purchasers an option to purchase an additional $15 million of the Notes. In
order to induce the Initial Purchasers to enter into the Purchase Agreement, the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Registrable
Securities (as defined herein) (each of the foregoing a "Holder" and together
the "Holders"), as follows:
SECTION 1. Definitions.Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. In addition to the terms that are defined elsewhere in this
Agreement, the following terms shall have the following meanings:
"Additional Interest Amount" has the meaning specified in
Section 2(e) hereof.
"Additional Interest Accrual Period" has the meaning specified
in Section 2(e) hereof.
"Additional Interest Payment Date" means each June 30 and
December 31.
"Affiliate", with respect to any specified person, has the
meaning specified in Rule 144.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
"Common Stock" means any shares of the common stock, no par
value, of the Company, and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"Company" has the meaning specified in the first paragraph of
this Agreement.
"Conversion Price" has the meaning assigned to such term in
the Indenture.
"Deferral Notice" has the meaning specified in Section 3(h)
hereof.
1
"Deferral Period" has the meaning specified in Section 3(h)
hereof.
"Effectiveness Deadline Date" has the meaning specified in
Section 2(a) hereof.
"Effectiveness Period" means the period commencing on the date
hereof and ending on the earliest date on which all Registrable Securities cease
to be Registrable Securities.
"Event" has the meaning specified in Section 2(e) hereof.
"Event Date" has the meaning specified in Section 2(e) hereof.
"Event Termination Date" has the meaning specified in Section
2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning specified in Section
2(a) hereof.
"Holder" has the meaning specified in the second paragraph of
this Agreement.
"Indenture" means the Indenture dated as of July 26, 2004, as
amended from time to time, between the Company and U.S. Bank National
Association, as trustee, pursuant to which the Notes are being issued.
"Initial Purchasers" has the meaning specified in the first
paragraph of this Agreement.
"Initial Shelf Registration Statement" has the meaning
specified in Section 2(a) hereof.
"Issue Date" means July 26, 2004.
"Material Event" has the meaning specified in Section 3(h)
hereof.
"Notes" means the 5 1/4% Senior Convertible Notes due 2009 of
the Company to be purchased pursuant to the Purchase Agreement.
Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the Form of
Notice and Questionnaire attached as Annex A to the Offering Memorandum of the
Company dated July 20, 2004 relating to the Notes, as such notice may be amended
to ensure compliance with applicable law.
"Notice Holder" means on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such date.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any amendment or
2
prospectus supplement, including post-effective amendments, and all materials
incorporated by reference or explicitly deemed to be incorporated by reference
in such Prospectus.
"Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
"Record Holder" means, with respect to any Additional Interest
Payment Date relating to any Note or shares of Underlying Common Stock as to
which any Additional Interest Amount has accrued, the registered holder of such
Note or such shares of Underlying Common Stock, as the case may be, on the June
15 or December 15, as the case may be, immediately prior to the next succeeding
Additional Interest Payment Date.
"Registrable Securities" means the Notes until such Notes have
been converted into the Underlying Common Stock and at all times subsequent to
any such conversion, the Underlying Common Stock and any securities into or for
which such securities have been converted or exchanged, and any security issued
with respect thereto upon any stock dividend, split, merger or similar event
until, in the case of any such security, the earliest of (i) its effective
registration under the Securities Act and resale in accordance with the
Registration Statement covering it, (ii) expiration of the holding period that
would be applicable thereto under Rule 144(k) assuming it is not held by an
Affiliate of the Company, (iii) its sale to the public pursuant to Rule 144, or
(iv) the date such security ceases to be outstanding.
"Registration Expenses" has the meaning specified in Section 5
hereof.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or explicitly deemed
to be incorporated by reference in such registration statement.
"Restricted Securities" has the meaning assigned to such term
in Rule 144.
"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"SEC" means the United States Securities and Exchange
Commission and any successor agency.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Shelf Registration Statement" has the meaning specified in
Section 2(a) hereof.
3
"Subsequent Shelf Registration Statement" has the meaning
specified in Section 2(b) hereof.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means U.S. Bank National Association (or any
successor entity), the Trustee under the Indenture.
"Underlying Common Stock" means the shares of Common Stock
into which the Notes are convertible or issued upon any such conversion.
SECTION 2. Shelf Registration.
(a) The Company shall prepare and file or cause to be prepared
and filed with the SEC no later than a date which is ninety (90) days after the
Issue Date (the "Filing Deadline Date") a Registration Statement for an offering
to be made on a delayed or continuous basis pursuant to Rule 415 of the
Securities Act (a "Shelf Registration Statement") registering the resale from
time to time by Holders of all of the Registrable Securities (the "Initial Shelf
Registration Statement"). The Initial Shelf Registration Statement shall be on
Form S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by such Holders in accordance with the methods of
distribution reasonably elected by the Holders and set forth in the Initial
Shelf Registration Statement and shall comply in all material respects with the
requirements of Form S-3 or other appropriate form and the requirements of
Regulations S-T under the Securities Act. The Company shall use its reasonable
best efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act no later than the date (the "Effectiveness
Deadline Date") that is one-hundred and eighty (180) days after the Issue Date,
and to keep, subject to Section 3(h) hereof, the Initial Shelf Registration
Statement (or any Subsequent Shelf Registration Statement) continuously
effective under the Securities Act until the expiration of the Effectiveness
Period. Each Holder that becomes a Notice Holder on or prior to the date ten
(10) Business Days prior to the time that the Initial Shelf Registration
Statement becomes effective shall be named as a selling securityholder in the
Initial Shelf Registration Statement and the related Prospectus in such a manner
as to permit such Holder to deliver such Prospectus to purchasers of Registrable
Securities in accordance with applicable law (other than laws not generally
applicable to all such Holders). No Holder that is not a Notice Holder shall be
entitled to be named as a selling securityholder, or have the Registrable
Securities held by it covered, in a Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period (other than because all Registrable
Securities registered thereunder shall have been resold pursuant thereto or
shall have otherwise ceased to be Registrable Securities and other than during a
Deferral Period), the Company shall use its reasonable best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof and in
any event within thirty (30) days of such cessation of effectiveness thereof,
amending the Shelf Registration Statement in a manner reasonably expected by the
Company to obtain the withdrawal of the order suspending the effectiveness
thereof, or filing an additional Shelf Registration Statement covering all of
the securities that as of the date of such filing are Registrable Securities (a
"Subsequent Shelf
4
Registration Statement"). If a Subsequent Shelf Registration Statement is filed,
the Company shall use its reasonable best efforts to cause the Subsequent Shelf
Registration Statement to become effective as promptly as is reasonably
practicable after such filing or, if filed during a Deferral Period, after the
expiration of such Deferral Period, and to keep such Registration Statement (or
subsequent Shelf Registration Statement), subject to Section 3(h) hereof,
continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement, if required by the Securities Act or as necessary to
name a Notice Holder as a selling securityholder pursuant to Section 2(d) below.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus, it will do so only in accordance with this
Section 2(d) and Section 3(h) and Section 4. Each Holder of Registrable
Securities wishing to sell Registrable Securities pursuant to an effective Shelf
Registration Statement and related Prospectus agrees to deliver a Notice and
Questionnaire to the Company at least ten (10) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement and to notify the Company in writing of such proposed sale within two
(2) Business Days prior to such proposed sale. Each Holder of Registrable
Securities who elects to sell Registrable Securities pursuant to a Shelf
Registration Statement agrees by submitting a Notice and Questionnaire to the
Company that it will be bound by the terms and conditions of the Notice and
Questionnaire and this Agreement. From and after the date the Initial Shelf
Registration Statement is declared effective, the Company shall, as promptly as
is reasonably practicable after the date a fully completed Notice and
Questionnaire is received by the Company, (i) if required by applicable law,
file with the SEC a post-effective amendment to the Shelf Registration Statement
or prepare and, if required by applicable law, file a supplement to the related
Prospectus or a supplement or amendment to any document incorporated therein by
reference or file any other document required by the SEC so that the Holder
delivering such Notice and Questionnaire is named as a selling securityholder in
the Shelf Registration Statement and the related Prospectus in such a manner as
to permit such Holder to deliver such Prospectus to purchasers of the
Registrable Securities in accordance with applicable law and, if the Company
shall file a post-effective amendment to the Shelf Registration Statement, use
its reasonable best efforts to cause such post-effective amendment to be
declared effective under the Securities Act as promptly as is reasonably
practicable, (ii) provide such Holder copies of any documents filed pursuant to
Section 2(d)(i) and (iii) notify such Holder as promptly as is reasonably
practicable after the effectiveness under the Securities Act of any
post-effective amendment filed pursuant to Section 2(d)(i); provided that if
such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall
take the actions set forth in clauses (i), (ii) and (iii) above upon expiration
of the Deferral Period in accordance with Section 3(h); provided further that
the Company shall not be required to file more than one post-effective amendment
to the Shelf Registration Statement during any 90-day period. Notwithstanding
anything contained herein to the contrary, the Company shall be under no
obligation to name any Holder that is not a Notice Holder as a selling
securityholder in any Registration Statement or related Prospectus.
5
(e) The parties hereto agree that the Holders of Registrable
Securities will suffer damages, and that it would not be feasible to ascertain
the extent of such damages with precision, if other than as permitted hereunder
(i) the Initial Shelf Registration Statement has not been filed on or prior to
the Filing Deadline Date, (ii) notwithstanding the use by the Company of its
reasonable best efforts, the Initial Shelf Registration Statement has not been
declared effective under the Securities Act on or prior to the Effectiveness
Deadline Date, or (iii) the aggregate duration of Deferral Periods in any period
exceeds the number of days permitted in respect of such period pursuant to
Section 3(h) hereof (each of the events of a type described in any of the
foregoing clauses (i) through (iii) is individually referred to herein as an
"Event," and the Filing Deadline Date in the case of clause (i), the
Effectiveness Deadline Date in the case of clause (ii), and the date on which
the aggregate duration of Deferral Periods in any period exceeds the number of
days permitted by Section 3(h) hereof in the case of clause (iii), being
referred to herein as an "Event Date"). Events shall be deemed to continue until
the "Event Termination Date," which shall be the following dates with respect to
the respective types of Events: the date the Initial Shelf Registration
Statement is filed in the case of an Event of the type described in clause (i),
the date the Initial Shelf Registration Statement is declared effective under
the Securities Act in the case of an Event of the type described in clause (ii),
and termination of the Deferral Period that caused the limit on the aggregate
duration of Deferral Periods in a period set forth in Section 3(h) to be
exceeded in the case of the commencement of an Event of the type described in
clause (iii).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the respective Event Termination Date (an "Additional
Interest Accrual Period"), the Company agrees to pay, as liquidated damages and
not as a penalty, an amount (the "Additional Interest Amount"), payable on the
Additional Interest Payment Dates to Record Holders of then outstanding Notes
that are Registrable Securities or of then outstanding shares of Underlying
Common Stock issued upon conversion of Notes that are Registrable Securities, as
the case may be, accruing, for each portion of such Additional Interest Accrual
Period beginning on and including a Additional Interest Payment Date (or, in
respect of the first time that the liquidation damages amount is to be paid to
Holders on a Additional Interest Payment Date as a result of the occurrence of
any particular Event, from the Event Date) and ending on but excluding the first
to occur of (A) the date of the end of the Additional Interest Accrual Period or
(B) the next Additional Interest Payment Date, at a rate per annum equal to
twenty five basis points (0.25%) for the first ninety (90) day period from the
Event Date, and thereafter at a rate per annum equal to fifty basis points
(0.5%) of the aggregate principal amount of such Notes or the aggregate
Conversion Price of the shares of Underlying Common Stock (determined as of the
Business Day immediately preceding the next Additional Interest Payment Date),
as the case may be; provided, that in the case of an Additional Interest Accrual
Period that is in effect solely as a result of an Event of the type described in
clause (iii) of the preceding paragraph, such Additional Interest Amount shall
be paid only to the Notice Holders. Notwithstanding the foregoing, no Additional
Interest Amounts shall accrue as to any Registrable Security from and after the
earlier of (x) the date such security is no longer a Registrable Security and
(y) expiration of the Effectiveness Period. The rate of accrual of the
Additional Interest Amount with respect to any period shall not exceed the rate
provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events. Following the cure of all Events requiring the payment by the
Company of Additional Interest Amounts to the Holders of Registrable Securities
pursuant to this Section, the accrual of Additional Interest Amounts will cease
6
(without in any way limiting the effect of any subsequent Event requiring the
payment of the Additional Interest Amount by the Company).
The Trustee, subject to the applicable provisions of the
Indenture, shall be entitled, but shall not be obligated, on behalf of Holders
of Notes or Underlying Common Stock, to seek any available remedy for the
enforcement of this Agreement, including for the payment of any Additional
Interest Amount. Notwithstanding the foregoing, the parties agree that the sole
monetary damages payable for a violation of the terms of this Agreement with
respect to which liquidated damages are expressly provided shall be such
Additional Interest Amount. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement.
All of the Company's obligations set forth in this Section
2(e) that are outstanding with respect to any Registrable Security at the time
such security ceases to be a Registrable Security shall survive until such time
as all such obligations under this Agreement with respect to such security have
been satisfied in full (notwithstanding termination of this Agreement pursuant
to Section 8(m)).
The parties hereto agree that the liquidated damages provided
for in this Section 2(e) constitute a reasonable estimate of the damages that
may be incurred by Holders of Registrable Securities by reason of the failure of
the Shelf Registration Statement to be filed or declared effective or available
for effecting resales of Registrable Securities in accordance with the
provisions hereof.
SECTION 3. Registration Procedures. In connection with the
registration obligations of the Company under Section 2 hereof, during the
Effectiveness Period the Company shall:
(a) Before filing any Registration Statement or Prospectus or
any amendments or supplements (other than supplements that do nothing
more substantive than name one or more Notice Holders as selling
securityholders) thereto with the SEC, furnish to the Initial
Purchasers copies of all such documents proposed to be filed at least
three (3) Business Days prior to such filing.
(b) Subject to Section 3(h), prepare and file with the SEC
such amendments and post-effective amendments to each Registration
Statement as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period; cause the related
Prospectus to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provision then in force) under the Securities Act; and use its
reasonable efforts to comply with the provisions of the Securities Act,
the Exchange Act and the rules and regulations thereunder applicable to
it with respect to the disposition of all securities covered by such
Registration Statement during the Effectiveness Period in accordance
with the intended methods of disposition by the sellers thereof set
forth in such Registration Statement as so amended or such Prospectus
as so supplemented.
7
(c) As promptly as reasonably practicable give notice to the
Notice Holders and the Initial Purchasers (i) at least three (3)
Business Days prior to filing, when any Prospectus, Registration
Statement (other than the Initial Registration Statement) or
post-effective amendment to a Registration Statement will be filed with
the SEC, provided, however, that the Company shall not be required by
this clause (i) to notify (A) the Initial Purchasers of the filing of a
Prospectus that does nothing more substantive than name one or more
Notice Holders as selling security holders or (B) any Notice Holder of
the filing of a Prospectus that does nothing more substantive than name
one or more other Notice Holders as selling securityholders, (ii) with
respect to a Registration Statement or any post-effective amendment
when the same has been declared effective, (iii) of any request,
following the effectiveness of the Initial Shelf Registration Statement
under the Securities Act, by the SEC or any other federal or state
governmental authority for amendments or supplements to any
Registration Statement or related Prospectus or for additional
information, (iv) of the issuance by the SEC or any other federal or
state governmental authority of any stop order or injunction suspending
or enjoining the use of any Prospectus or the effectiveness of any
Registration Statement or the initiation or threatening of any
proceedings for that purpose, (v) 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 the offering
cease to be true and correct in all material respects, (vi) of the
receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any
of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vii) of
the occurrence of (but not the nature of or details concerning) a
Material Event; provided, that no notice by the Company shall be
required pursuant to this clause (vii) if the event that the Company
either promptly files a supplement to update the Prospectus or a Form
8-K or other appropriate Exchange Act report that is incorporated by
reference into the Registration Statement, which in any such case,
contains the requisite information with respect to such Material Event
that results in such Registration Statement no longer containing any
untrue statement of a material fact or omitting to state a material
fact necessary to make the statement contained therein not misleading)
and (viii) of the determination by the Company that a post-effective
amendment to a Registration Statement will be filed with the SEC, which
notice may, at the discretion of the Company (or as required pursuant
to Section 3(h), state that it constitutes a Deferral Notice, in which
event the provisions of Section 3(h) shall apply.
(d) Use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
or the lifting of any suspension of the qualification (or exemption
from qualification) of any of the Registrable Securities for sale in
any jurisdiction in which they have been qualified for sale, in either
case as promptly as reasonably practicable or, if any such order or
suspension is made effective during any Deferral Period, as promptly as
reasonably practicable after the expiration of such Deferral Period.
(e) As promptly as reasonably practicable after the filing of
such documents with the SEC, furnish to each Notice Holder and the
Initial Purchasers, upon their written
8
request and without charge, at least one (1) conformed copy of the
Registration Statement and any amendment thereto, including financial
statements, but excluding schedules, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits if such
schedules, documents and exhibits are available via the SEC's XXXXX
system.
(f) During the Effectiveness Period (except during such
periods that a Deferral Notice is outstanding and has not been
revoked), deliver to each Notice Holder in connection with any sale of
Registrable Securities pursuant to a Registration Statement, without
charge, as many copies of the Prospectus or Prospectuses relating to
such Registrable Securities and any amendment or supplement thereto and
such other documents as such Notice Holder may reasonably request,
including financial statements and schedules and, if such Notice Holder
so requests, all exhibits in order to facilitate the public sale or
other disposition of the Registrable Securities; and the Company hereby
consents (except during such periods that a Deferral Notice is
outstanding and has not been revoked) to the use of such Prospectus or
each amendment or supplement thereto by each Notice Holder in
connection with any offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto in
the manner set forth therein.
(g) Subject to Section 3(h), prior to any public offering of
the Registrable Securities pursuant to the Shelf Registration
Statement, use reasonable efforts to register or qualify or cooperate
with the Notice Holders in connection with the registration or
qualification (or exemption therefrom) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any Notice Holder reasonably
requests in writing (which request may be included in the Notice and
Questionnaire), it being agreed that no such registration or
qualification will be made unless so requested; prior to any public
offering of the Registrable Securities pursuant to the Shelf
Registration Statement, use reasonable efforts to keep each such
registration or qualification (or exemption therefrom) effective during
the Effectiveness Period in connection with such Notice Holder's offer
and sale of Registrable Securities pursuant to such registration or
qualification (or exemption therefrom) and do any and all other acts or
things reasonably necessary to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in
the relevant Registration Statement and the related Prospectus;
provided that the Company will not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction
where it is not otherwise qualified, or (ii) take any action that would
subject it to general service of process in suits or to taxation in any
such jurisdiction where it is not then so subject.
(h) Upon (A) the issuance by the SEC of a stop order
suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration
Statement under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact (a "Material
Event") as a result of which any Registration Statement shall contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, or any Prospectus shall contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein
9
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or (C) the
occurrence or existence of any development, event, fact, situation or
circumstance relating to the Company that, in the good faith judgment
of the Company, makes it appropriate to suspend the availability of the
Shelf Registration Statement and the related Prospectus, (i) in the
case of clause (B) above, subject to the next sentence, as promptly as
practicable prepare and file a post-effective amendment to such
Registration Statement or a supplement to the related Prospectus or any
document incorporated therein by reference or file any other required
document that would be incorporated by reference into such Registration
Statement and Prospectus so that such Registration Statement does not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and such Prospectus does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, subject to the
next sentence, use its reasonable best efforts to cause it to be
declared effective as promptly as is reasonably practicable, and (ii)
give notice to the Notice Holders as promptly as is reasonably
practicable that the availability of the Shelf Registration Statement
is suspended (a "Deferral Notice") and, upon receipt of any Deferral
Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to the Registration Statement until such Notice
Holder's receipt of copies of the supplemented or amended Prospectus
provided for in clause (i) above, or until it is advised in writing by
the Company that the Prospectus may be used, and has received copies of
any additional or supplemental filings that are incorporated or deemed
incorporated by reference in such Prospectus. The Company will use its
reasonable best efforts to ensure that the use of the Prospectus may be
resumed (x) in the case of clause (A) above, as promptly as is
reasonably practicable, (y) in the case of clause (B) above, as soon as
reasonably practicable thereafter, in the reasonable judgment of the
Company, public disclosure of such Material Event would not be
detrimental to the interests of the Company and (z) in the case of
clause (C) above, as soon as, in the discretion of the Company, such
suspension is no longer appropriate. So long as the period during which
the availability of the Registration Statement and any Prospectus is
suspended (the "Deferral Period") does not exceed sixty (60) days
during any three (3) month period or one hundred twenty (120) days
during any twelve (12) month period, the Company shall not incur any
obligation to pay liquidated damages pursuant to Section 2(e).
(i) If reasonably requested in writing in connection with a
disposition of Registrable Securities in an amount of at least
$10,000,000 pursuant to a Registration Statement, make reasonably
available for inspection during normal business hours by a
representative for the Notice Holders of such Registrable Securities
and any broker-dealers, attorneys and accountants retained by such
Notice Holders, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries,
and cause the appropriate executive officers, directors and designated
employees of the Company and its subsidiaries to make reasonably
available for inspection during normal business hours on reasonable
notice all relevant information
10
reasonably requested by such representative for the Notice Holders or
any such broker-dealers, attorneys or accountants in connection with
such disposition, in each case as is customary and reasonably necessary
for similar "due diligence" examinations; provided, however, that such
persons shall first agree in writing with the Company that any
information that is reasonably designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons and shall be used solely for the purposes
of exercising rights under this Agreement, unless (i) disclosure of
such information is required by court or administrative order or is
necessary to respond to inquiries of regulatory authorities; provided,
however, that such persons shall as soon as reasonably practicable
provide written notice to the Company of any request by any such court
or regulatory authority for any such confidential information of the
Company in order to allow the Company a reasonable amount of time to
seek an appropriate protective order to prevent the disclosure of such
information, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities
laws in connection with the filing of any Registration Statement or the
use of any Prospectus referred to in this Agreement), (iii) such
information becomes generally available to the public other than as a
result of a disclosure or failure to safeguard by any such person or
(iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a
confidentiality agreement or other obligation of confidentiality; and
provided further that the foregoing inspection and information
gathering shall, to the greatest extent possible, be coordinated on
behalf of all the Notice Holders and the other parties entitled thereto
by the counsel referred to in Section 5.
(j) Comply in all material respects with all applicable rules
and regulations of the SEC and make generally available to its
securityholders earning statements (which need not be audited)
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than the time period prescribed by the SEC for
filing a Form 10-Q after the end of any 12-month period (or the time
period prescribed by the SEC for filing a Form 10-K after the end of
any 12-month period if such period is a fiscal year) commencing on the
first day of the first fiscal quarter of the Company commencing after
the effective date of a Registration Statement, which statements shall
cover said 12-month periods.
(k) Unless the Registrable Securities are in book-entry form,
reasonably cooperate with each Notice Holder to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities sold pursuant to a Registration Statement and not bearing
any restrictive legends (unless required by applicable law), and cause
such Registrable Securities to be in such denominations as are
permitted by the Indenture and registered in such names as such Notice
Holder may request in writing at least five (5) Business Days prior to
any sale of such Registrable Securities.
(l) Provide a CUSIP number for all Registrable Securities
covered by each Registration Statement not later than the effective
date of such Registration Statement and provide the Trustee for the
Notes and the transfer agent for the Common Stock with certificates for
the Registrable Securities that are in a form eligible for deposit with
The Depository Trust Company.
11
(m) Reasonably cooperate and assist in any filings required to
be made with the NASD and in the performance of any due diligence
investigation by any underwriter and its counsel (including any
"qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD) required in
connection therewith.
(n) Upon (i) the filing of the Initial Shelf Registration
Statement and (ii) the effectiveness of the Initial Shelf Registration
Statement, announce the same, in each case by release to Businesswire,
Reuters Economic Services, Bloomberg Business News or any other means
of dissemination reasonably expected to make such information known
publicly.
(o) Take all actions necessary, and reasonably requested by
the Holders of a majority of the Registrable Securities being sold, to
dispose of such Registrable Securities.
(p) Cause the Indenture to be qualified under the TIA not
later than the effective date of any Registration Statement; and in
connection therewith, cooperate with the Trustee 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 reasonable 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 SEC to enable the
Indenture to be so qualified in a timely manner.
SECTION 4. Holder's Obligations. Each Holder agrees, by
acquisition of the Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with a Notice and Questionnaire as
required pursuant to Section 2(d) hereof (including the information required to
be included in such Notice and Questionnaire) and the information set forth in
the next sentence and such Holder provides written notice of a proposed sale to
the Company at least two (2) Business Days prior to such sale. Each Notice
Holder agrees promptly to furnish to the Company in writing all information
required to be disclosed in order to make the information previously furnished
to the Company by such Notice Holder not misleading, any other information
regarding such Notice Holder and the distribution of such Registrable Securities
as may be required to be disclosed in the Registration Statement under
applicable law or pursuant to SEC comments and any information otherwise
requested by the Company. Any sale of any Registrable Securities by a Holder
shall constitute a representation and warranty by such Holder that the
information relating to such Holder and its plan of distribution is as set forth
in the Prospectus delivered by such Holder in connection with such disposition,
that such Prospectus does not as of the time of such sale contain any untrue
statement of a material fact provided by or relating to such Holder or its plan
of distribution and that such Prospectus does not as of the time of such sale
omit to state any material fact provided by or relating to such Holder or its
plan of distribution necessary to make the statement in the Prospectus, in light
of the circumstances under which they were made, not misleading. Each Holder
further agrees, following termination of the Effectiveness Period, to notify the
Company, within five (5) Business Days of a request, of the amount of
12
Registrable Securities sold pursuant to the Registration Statement and, in the
absence of a response, the Company may assume that all of the Holder's
Registrable Securities were so sold.
SECTION 5. Registration Expenses. The Company shall bear all
fees and expenses incurred in connection with the performance by the Company of
its obligations under Sections 2 and 3 of this Agreement whether or not any of
the Registration Statements are declared effective. Such fees and expenses shall
include, without limitation, (i) all registration and filing fees (including,
without limitation, fees and expenses (x) with respect to filings required to be
made with the National Association of Securities Dealers, Inc. and (y) of
compliance with federal and state securities or Blue Sky laws to the extent such
filings or compliance are required pursuant to this Agreement), (ii) printing
expenses (including, without limitation, expenses of any printing of
Prospectuses and certificates for Registrable Securities in a form eligible for
deposit with The Depository Trust Company) and the Company's expenses for
messenger and delivery services and telephone, (iii) duplication expenses
relating to copies of any Registration Statement or Prospectus delivered to any
Holders hereunder, (iv) fees and disbursements of counsel for the Company and of
any independent certified public accountants of the Company and (v) fees and
disbursements of the Trustee and its counsel and of the registrar and transfer
agent for the Common Stock. In addition, the Company shall pay the internal
expenses of the Company (including, without limitation, all salaries and
expenses of officers and employees performing legal or accounting duties), the
expense of any annual audit, the fees and expenses incurred in connection with
the listing, if any, by the Company of the Registrable Securities on any
securities exchange on which the same securities of the Company are then listed
and the fees and expenses of any person, including special experts, retained by
the Company. Notwithstanding the provisions of this Section 5, each seller of
Registrable Securities shall pay all selling expenses, commissions and discounts
except to the extent set forth in this Section 5.
SECTION 6. Indemnification; Contribution.
(a) The Company agrees to indemnify and hold harmless the
Initial Purchasers and each Holder of Registrable Securities and each person, if
any, who controls the Initial Purchasers or any holder of Registrable Securities
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or
13
any investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission of a material fact, or any such alleged
untrue statement or omission of a material fact, provided that (subject
to Section 6(d) below) any such settlement is effected with the prior
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel), reasonably incurred
in investigating, preparing 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 statement or omission of a material fact, or any such alleged
untrue statement or omission of a material fact, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information, including, without limitation,
the Notice and Questionnaire furnished to the Company by or on behalf of the
Initial Purchasers or such Holder of Registrable Securities expressly for use in
the Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto).
(b) In connection with any Shelf Registration Statement in
which a Holder of Registrable Securities, including, without limitation, the
Initial Purchasers, is participating and is furnishing information relating to
such Holder of Registrable Securities to the Company in writing expressly for
use in such Registration Statement, the Prospectus or any amendments or
supplements thereto, the Holders of such Registrable Securities agree, severally
and not jointly, to indemnify and hold harmless the Company, the Initial
Purchasers and the other selling Holders and each person, if any, who controls
the Company, the Initial Purchasers and the other selling Holders within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to any untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Holder of Registrable Securities expressly for use in the Registration
Statement (or any amendment thereto) or the 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 Registration
Statement or Prospectus.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or proceeding
commenced against it in respect of which indemnity may be sought hereunder, but
failure so 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 otherwise than on account of this indemnity agreement. An
indemnifying
14
party may participate at its own expense in the defense of such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. 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) separate from their own 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
indemnified parties, 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 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim 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 any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) If the indemnification provided for in this Section 6 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, in such proportion as is
appropriate to reflect the relative fault of the Company on the one hand and the
Holders and the Initial Purchasers on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and the
Holders and the Initial Purchasers 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, the Holders or the Initial
Purchasers and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Holders and the Initial Purchasers agree that
it would not be just and equitable if contribution pursuant to this Section 6
were determined by pro rata allocation (even if the Initial Purchasers 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 above in
this Section 6. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
6 shall be
15
deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing 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 6, no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities sold by it were offered exceeds
the amount of any damages which such 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 0000 Xxx) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6, each Person, if any, who
controls an Initial Purchaser or Holder within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Initial Purchaser or Holder, and each director of the
Company, and each Person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 6 are several in proportion
to the principal amount of Securities set forth opposite their respective names
in Schedule A to the Purchase Agreement and not joint.
SECTION 7. Information Requirements. If at any time before the
end of the Effectiveness Period the Company ceases to be required to file
reports pursuant to the Exchange Act, the Company covenants that it will upon
the reasonable request of any Holder of Registrable Securities (a) make publicly
available such information as is reasonably necessary to permit sales pursuant
to Rule 144 under the Securities Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the Securities Act and it will take such further action as any Holder of
Registrable Securities may reasonably request, and (c) take such further action
that is reasonable in the circumstances, in each case, to the extent required
from time to time to enable such Holder to sell its Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by and customarily taken in connection with sales pursuant
to (i) Rule 144 under the Securities Act, as such Rule may be amended from time
to time, (ii) Rule 144A under the Securities Act, as such Rule may be amended
from time to time, or (iii) any similar rules or regulations hereafter adopted
by the SEC. Upon the request of any Holder of Registrable Securities, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements, unless such a statement has been included in
the Company's most recent report filed pursuant to Section 13 or 15(d) of the
Exchange Act. Notwithstanding the foregoing, nothing in this Section 7 shall be
deemed to require the Company to register any of its securities (other than the
Common Stock) under any section of the Exchange Act.
16
SECTION 8. Miscellaneous.
(a) No Conflicting Agreements. The Company is not, as of the
date hereof, a party to, nor shall it, on or after the date of this Agreement,
enter into, any agreement with respect to the Company's securities that
conflicts with the rights granted to the Holders of Registrable Securities in
this Agreement. The Company represents and warrants that the rights granted to
the Holders of Registrable Securities hereunder do not in any way conflict with
the rights granted to the holders of the Company's securities under any other
agreements. The parties hereto agree that existing registration rights
previously granted by the Company to other holders of its Common Stock shall not
be deemed in any way to violate or conflict with this Agreement or the rights
granted to the Holders of Registrable Securities hereunder. The parties hereto
further agree that any registration rights that may be granted by the Company in
the future to holders of its Common Stock or other securities shall not be
deemed in any way to violate or conflict with this Agreement or the rights
granted to the Holders of Registrable Securities hereunder so long as such
holders are not granted any right to participate as selling stockholders in any
registration pursuant to this Agreement and are not granted any right that would
prevent or restrict the Company from performing its obligations under this
Agreement.
(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 a majority of the then outstanding Underlying Common Stock constituting
Registrable Securities (with Holders of Notes deemed to be the Holders, for
purposes of this Section, of the number of outstanding shares of Underlying
Common Stock into which such Notes are or would be convertible as of the date on
which such consent is requested). Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Registrable
Securities may be given by Holders of at least a majority of the Registrable
Securities being sold by such Holders pursuant to such Registration Statement;
provided that the provisions of this sentence may not be amended, modified, or
supplemented except in accordance with the provisions of the immediately
preceding sentence. Notwithstanding the foregoing, this Agreement may be amended
by written agreement signed by the Company and the Initial Purchasers, without
the consent of the Holders of Registrable Securities, to cure any ambiguity or
to correct or supplement any provision contained herein that may be defective or
inconsistent with any other provision contained herein or to make such other
provisions in regard to matters or questions arising under this Agreement that
shall not adversely affect the interests of the Holders of Registrable
Securities. Each Holder of Registrable Securities outstanding at the time of any
such amendment, modification, supplement, waiver or consent or thereafter shall
be bound by any such amendment, modification, supplement, waiver or consent
effected pursuant to this Section 8(b), whether or not any notice, writing or
marking indicating such amendment, modification, supplement, waiver or consent
appears on the Registrable Securities or is delivered to such Holder.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, by telecopier
(other than for notices and
17
other communications to the Company), by courier guaranteeing overnight delivery
or by first-class mail, return receipt requested, and shall be deemed given (i)
when made, if made by hand delivery, (ii) upon confirmation, if made by
telecopier, (iii) one (1) Business Day after being deposited with such courier,
if made by overnight courier, or (iv) on the date indicated on the notice of
receipt, if made by first-class mail, to the parties as follows:
If to a Holder of Registrable Securities that is not a Notice
Holder, at the address for such Holder then appearing in the Registrar (as
defined in the Indenture);
If to a Notice Holder, at the most current address given by
such Holder to the Company in a Notice and Questionnaire or any amendment
thereto;
If to the Company, to:
Titan International Inc.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile No. (000) 000-0000
Attention: Xxxxx Xxxxxx, Vice President, Secretary
and General Counsel
with a copy to:
Bodman LLP
000 Xxxx Xxx Xxxxxx Xxxx
Xxxxx 000
Xxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
and
if to the Initial Purchasers, to:
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxx Xxxxx
with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Xxxx Xxxxxx
18
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(d) Approval of Holders. Whenever the consent or approval of Holders of
a specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its Affiliates (other than the
Initial Purchasers or subsequent Holders of Registrable Securities if such
subsequent Holders are deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
(e) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto
and, without requiring any express assignment, shall inure to the benefit of and
be binding upon each Holder of any Registrable Securities; provided that nothing
herein shall be deemed to permit any assignment, transfer of other disposition
of Registrable Securities in violation of the terms of the Purchase Agreement,
the Indenture or applicable law. 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 subject to all of the terms of this
Agreement and by taking and holding such Registrable Securities, such person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement.
(f) 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 original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(i) Severability. If any term, provision, covenant or restriction of
this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction, it being intended that all of the rights and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(j) Entire Agreement. This Agreement is intended by the parties hereto
as a final expression of their agreement and is intended to be a complete and
exclusive statement of
19
the agreement and understanding of the parties hereto in respect of the subject
matter contained herein and the registration rights granted by the Company with
respect to the Registrable Securities. Except as provided in the Purchase
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements and undertakings
among the parties hereto with respect to such registration rights.
(k) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the expiration of the Effectiveness Period,
except for (i) any liabilities or obligations under Section 4, 5, 6 or 8 hereof
and the obligations to make payments of and provide for liquidated damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
its terms until the applicable statute of limitations has expired.
20
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
Very truly yours,
TITAN INTERNATIONAL, INC.
By:
-------------------------------------
Name:
Title:
Agreed and accepted as of the date first
above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
-------------------------------------------------------
Name:
Title:
On its behalf and as Representative of the other
Initial Purchasers named in Schedule A
of the Underwriting Agreement
SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT
21
