EXHIBIT 4(c)
EXECUTION VERSION
XXXXX BROS. CORPORATION
$250,000,000
8? % Senior Subordinated Notes Due 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 31, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
McDonald Investments Inc.
SunTrust Capital Markets, Inc.
NatCity Investments, Inc.
ING Financial Markets LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Huntington Capital Corp.
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxx Bros. Corporation, a corporation organized under the laws of Delaware
(the "Company"), proposes to issue and sell to certain purchasers (the "Initial
Purchasers"), upon the terms set forth in a Purchase Agreement dated as of July
25, 2002, between the Company, the subsidiary guarantors signatory thereto and
the Initial Purchasers (the "Purchase Agreement"), $250,000,000 aggregate
principal amount of its 8? % Senior Subordinated Notes Due 2012 (the "Notes")
relating to the initial placement of the Notes (the "Initial Placement"). The
Notes will be unconditionally guaranteed (the "Guarantees," and, together with
the Notes, the "Securities") on a senior subordinated basis by each of the
Company's direct and indirect domestic subsidiaries set forth on the signature
page hereto (the "Guarantors"). To induce the Initial Purchasers to enter into
the Purchase Agreement and to satisfy a condition of your obligations
thereunder, the Company and the Guarantors agree with you for your benefit and
the benefit of the holders from time to time of the Securities (including the
Initial Purchasers) (each a "Holder" and, together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, control of
a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such under
the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration statement
of the Company and the Guarantors on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company) for New Securities.
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated as
of July 31, 2002 between the Company, the Guarantors and X.X. Xxxxxx Trust
Company, National Association, as trustee, as the same may be amended from time
to time in accordance with the terms thereof.
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"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchasers" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the aggregate
principal amount of Securities registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"New Securities" shall mean debt securities of the Company and the
Guarantors, identical in all material respects to the Securities (except that
the cash interest and interest rate step-up provisions and the transfer
restrictions shall be modified or eliminated, as appropriate) and to be issued
under the Indenture or the New Securities Indenture.
"New Securities Indenture" shall mean an indenture between the Company, the
Guarantors and the New Securities Trustee, identical in all material respects to
the Indenture (except that the cash interest and interest rate step-up
provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New
Securities under the New Securities Indenture.
"Prospectus" shall mean 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 under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of any portion of the Securities or the New Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the Company to
issue and deliver to the Holders of the Securities that are not prohibited by
any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New
Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the New Securities pursuant to the provisions of this Agreement, any amendments
and supplements to such registration statement, including post-effective
amendments (in each case including the Prospectus contained therein), all
exhibits thereto and all material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
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"Shelf Registration" shall mean a registration effected pursuant to Section
3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)(ii)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration statement
of the Company and the Guarantors pursuant to the provisions of Section 3 hereof
which covers some or all of the Securities or New Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Securities under the
Indenture.
"underwriter" shall mean any underwriter of Securities in connection with
an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer.
(a) The Company and the Guarantors shall prepare and, not later than
90 days following the date of the original issuance of the Securities (or
if such 90th day is not a Business Day, the next succeeding Business Day),
shall file with the Commission the Exchange Offer Registration Statement
with respect to the Registered Exchange Offer. The Company and the
Guarantors shall use their best efforts to cause the Exchange Offer
Registration Statement to become effective under the Act within 150 days of
the date of the original issuance of the Securities (or if such 150th day
is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the
Registered Exchange Offer, it being the objective of such Registered
Exchange Offer to enable each Holder electing to exchange Securities for
New Securities (assuming that such Holder is not an Affiliate of the
Company, acquires the New Securities in the ordinary course of such
Holder's business, has no arrangements with any Person to participate in
the distribution of the New Securities and is not prohibited by any law or
policy of the Commission from participating in the Registered Exchange
Offer) to trade such New Securities from and after their receipt without
any limitations or restrictions under the Act and without material
restrictions under the securities laws of a substantial proportion of the
several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company and
the Guarantors shall:
(i) mail or cause to be mailed or delivered to each Holder a
copy of the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents;
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(ii) keep the Registered Exchange Offer open for not less than 30
days and not more than 45 days after the date notice thereof is mailed
to the Holders (or, in each case, longer if required by applicable
law);
(iii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that it
is available for sales of New Securities by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open;
(vi) if requested by the Commission, prior to effectiveness of
the Exchange Offer Registration Statement, provide a supplemental
letter to the Commission (A) stating that the Company and the
Guarantors are conducting the Registered Exchange Offer in reliance on
the position of the Commission in Exxon Capital Holdings Corporation
(pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc. (pub.
avail. June 5, 1991); and (B) including a representation that the
Company and the Guarantors have not entered into any arrangement or
understanding with any Person to distribute the New Securities to be
received in the Registered Exchange Offer and that, to the best of
their information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the New Securities in the
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the New
Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company and the Guarantors shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 5(s) all Securities so accepted for exchange; and
(iii) cause the Trustee or the New Securities Trustee, as the
case may be, promptly to authenticate and deliver to each Holder of
Securities a principal amount of New Securities equal to the principal
amount of the Securities of such Holder so accepted for exchange.
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(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the New Securities, if the resales are of New Securities
obtained by such Holder in exchange for Securities acquired by such Holder
directly from the Company or one of its Affiliates, (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail.
June 5, 1991) and Exxon Capital Holdings Corporation (pub. avail. May 13,
1988), as interpreted inthe Commission's letter to Xxxxxxxx & Sterling
dated July 2, 1993 and similar no-action letters; and (y) must comply with
the registration and prospectus delivery requirements of the Act in
connection with any secondary resale transaction and such 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 under the Act. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company and
the Guarantors that, at the time of the consummation of the Registered
Exchange Offer:
(i) any New Securities received by such Holder will be acquired
in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Securities or the
New Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of the Company or any of
the Guarantors (or if it is, that it will comply with the registration
and prospectus delivery requirements of the Act to the extent
applicable).
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange
of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Company and the Guarantors shall
issue and deliver to such Initial Purchaser or the Person purchasing New
Securities registered under a Shelf Registration Statement as contemplated
by Section 3 hereof from such Initial Purchaser, in exchange for such
Securities, a like principal amount of New Securities. The Company and the
Guarantors shall use their best efforts to cause the CUSIP Service Bureau
to issue the same CUSIP number for such New Securities as for New
Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable interpretations
thereof by the Commission's staff, the Company determines upon advice of
its outside counsel that it is not permitted to effect the Registered
Exchange Offer as contemplated by Section 2 hereof; or (ii) for any other
reason the Exchange Offer Registration Statement is not declared effective
by the Commission under the Act within 150 days of the date of the original
issuance of the Securities or the Registered Exchange Offer is not
consummated within 180 days of the date of the original issuance of the
Securities; (iii)
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any Initial Purchaser so requests with respect to Securities that are not
eligible to be exchanged for New Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered
Exchange Offer; (iv) any Holder (other than an Initial Purchaser) is not
eligible to participate in the Registered Exchange Offer or does not
receive freely tradable New Securities in the Registered Exchange Offer
other than by reason of such Holder being an Affiliate of the Company (it
being understood that the requirement that a participating Broker-Dealer
deliver the prospectus contained in the Exchange Offer Registration
Statement in connection with sales of New Securities shall not result in
such New Securities being not "freely tradable"); or (v) in the case of any
Initial Purchaser that participates in the Registered Exchange Offer or
acquires New Securities pursuant to Section 2(f) hereof, such Initial
Purchaser does not receive freely tradable New Securities in exchange for
Securities constituting any portion of an unsold allotment, other than by
reason of such Holder being an Affiliate of the Company (it being
understood that (x) the requirement that an Initial Purchaser deliver a
Prospectus containing the information required by Item 507 or 508 of
Regulation S-K under the Act in connection with sales of New Securities
acquired in exchange for such Securities shall result in such New
Securities being not "freely tradable;" and (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of New
Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other
trading activities shall not result in such New Securities being not
"freely tradable") the Company and the Guarantors shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b)
(i) The Company and the Guarantors shall as promptly as
practicable (but in no event more than 45 days after so required or
requested pursuant to this Section 3), file with the Commission and
thereafter shall use their best efforts to cause to be declared
effective under the Act a Shelf Registration Statement relating to the
offer and sale of the Securities or the New Securities, as applicable,
by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement; provided, however, that no Holder (other
than an Initial Purchaser) shall be entitled to have the Securities
held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this
Agreement applicable to such Holder; and provided further, that with
respect to New Securities received by an Initial Purchaser in exchange
for Securities constituting any portion of an unsold allotment, the
Company and the Guarantors may, if permitted by current
interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in satisfaction of their obligations under this subsection
with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed
by the provisions herein applicable to, a Shelf Registration
Statement.
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(ii) The Company and the Guarantors shall use their best efforts
to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit
the Prospectus forming part thereof to be usable by Holders for a
period of two years from the date the Shelf Registration Statement is
declared effective by the Commission or such shorter period that will
terminate when all the Securities or New Securities, as applicable,
covered by the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement (in any such case, such period being
called the "Shelf Registration Period"). The Company and the
Guarantors shall be deemed not to have used their best efforts to keep
the Shelf Registration Statement effective during the requisite period
if they voluntarily take any action that would result in Holders of
Securities covered thereby not being able to offer and sell such
Securities during that period, unless (A) such action is required by
applicable law; or (B) such action is taken by the Company and the
Guarantors in good faith and for valid business reasons (not including
avoidance of the Company's and the Guarantors' obligations hereunder),
including the acquisition or divestiture of assets to the extent
permitted by the terms of the Indenture, so long as the Company and
the Guarantors promptly thereafter comply with the requirements of
Section 5(k) hereof, if applicable.
(iii) The Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission; and (B) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
4. Special Interest. If (a) on or prior to the 90th day following the
original issue date of the Securities, neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been filed with the
Commission, (b) on or prior to the 150th day following the original issue date
of the Securities, neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement has been declared effective, (c) on or prior to the
180th day following the original issue date of the Securities, neither the
Registered Exchange Offer has been consummated nor the Shelf Registration
Statement has been declared effective, or (d) after either the Exchange Offer
Registration Statement or the Shelf Registration Statement has been declared
effective, such Registration Statement thereafter ceases to be effective or
usable (subject to certain exceptions) in connection with resales of Securities
or New Securities in accordance with and during the periods specified in this
Agreement (each such event referred to in clauses (a) through (d), a
("Registration Default"), interest ("Special Interest") will accrue on the
principal amount of the Securities and the New Securities (in addition to the
stated interest on the Securities and New Securities) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Special Interest will
accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of such Registration Default and shall increase by
0.25%
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per annum at the end of each subsequent 90-day period, but in no event shall
such rate exceed 1.00% per annum.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
5. Additional Registration Procedures. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five Business Days prior to the
filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall use their best
efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably propose;
(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in
a section setting forth details of the Exchange Offer, in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement, and
in Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules
and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact
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or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Company and the Guarantors shall advise you, the Holders of
Securities covered by any Shelf Registration Statement and any Exchanging
Dealer under any Exchange Offer Registration Statement that has provided in
writing to the Company and the Guarantors a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice
pursuant to clauses (ii) through (v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Company and the
Guarantors shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company and the Guarantors of any
notification with respect to the suspension of the qualification of
the securities included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company and the Guarantors shall use their best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for
sale in any jurisdiction at the earliest possible time.
(e) The Company and the Guarantors shall furnish to each Holder of
Securities covered by any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by
reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).
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(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Securities covered by any
Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such
Holder may reasonably request. The Company and the Guarantors consent to
the use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders of securities in connection with the offering and sale
of the securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall furnish to each Exchanging
Dealer which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto,
including all material incorporated by reference therein, and, if the
Exchanging Dealer so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(h) The Company and the Guarantors shall promptly deliver to each
Initial Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Company and the Guarantors consent to
the use of the Prospectus or any amendment or supplement thereto by any
Initial Purchaser, any Exchanging Dealer and any such other Person that may
be required to deliver a Prospectus following the Registered Exchange Offer
in connection with the offering and sale of the New Securities covered by
the Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities or New Securities pursuant to any Registration Statement, the
Company and the Guarantors shall arrange, if necessary, for the
qualification of the Securities or the New Securities for sale under the
laws of such jurisdictions as any Holder shall reasonably request and will
maintain such qualification in effect so long as required; provided that in
no event shall the Company and the Guarantors be obligated to qualify to do
business in any jurisdiction where they are not then so qualified or to
take any action that would subject them to service of process in suits,
other than those arising out of the Initial Placement, the Registered
Exchange Offer or any offering pursuant to a Shelf Registration Statement,
in any such jurisdiction where they are not then so subject.
(j) The Company and the Guarantors shall cooperate with the Holders
of Securities to facilitate the timely preparation and delivery of
certificates representing New Securities or Securities to be issued or sold
pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Guarantors shall promptly
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prepare a post-effective amendment to the applicable Registration Statement
or an amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to initial purchasers of
the securities included therein, the Prospectus will not include 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. In such circumstances, the period of
effectiveness of the Exchange Offer Registration Statement provided for in
Section 2 and the Shelf Registration Statement provided for in Section 3(b)
shall each be extended by the number of days from and including the date of
the giving of a notice of suspension pursuant to Section 5(c) to and
including the date when the Initial Purchasers, the Holders of the
Securities and any known Exchanging Dealer shall have received such amended
or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement,
the Company and the Guarantors shall provide a CUSIP number for the
Securities or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates
for such Securities or New Securities, in a form eligible for deposit with
The Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its
security holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Act.
(n) The Company and the Guarantors shall cause the Indenture or the
New Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
Securities or New Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and the Guarantors such information
regarding the Holder and the distribution of such Securities or New
Securities as the Company and the Guarantors may from time to time
reasonably require for inclusion in such Registration Statement. The
Company and the Guarantors may exclude from such Shelf Registration
Statement the Securities or New Securities of any Holder that unreasonably
fails to furnish such information within a reasonable time after receiving
such request.
(p) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall enter into such agreements and take all other
appropriate actions (including if requested an underwriting agreement in
customary form) in order to expedite or facilitate the registration or the
disposition of the Securities or New Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to
contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any,
with respect to all parties to be indemnified pursuant to Section 7).
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(q) In the case of any Shelf Registration Statement, the Company and
the Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Securities or New Securities to be registered thereunder, any
underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Holders of
Securities or New Securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the Guarantors
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Securities or New Securities registered thereunder
and the underwriters, if any, in customary form and covering matters
of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and
13
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 5(k) and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company and the Guarantors shall:
(i) make reasonably available for inspection by such Initial
Purchaser, and any attorney, accountant or other agent retained by
such Initial Purchaser, all relevant financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by such Initial
Purchaser or any such attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such Initial Purchaser or any such attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law, or such information becomes
available to the public generally or through a third party without an
accompanying obligation of confidentiality;
(iii) make such representations and warranties to such Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and the Guarantors
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to such Initial Purchaser
and its counsel), addressed to such Initial Purchaser, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Initial Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and
14
financial data are, or are required to be, included in the
Registration Statement), addressed to such Initial Purchaser, in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings, or if requested by such Initial Purchaser
or its counsel in lieu of a "cold comfort" letter, an agreed-upon
procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by such Initial Purchaser or its
counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel,
including those to evidence compliance with Section 5(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the New Securities,
the Company shall mark, or caused to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the
New Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
(t) The Company and the Guarantors will use their best efforts
(i) if the Securities have been rated prior to the initial sale of
such Securities, to confirm such ratings will apply to the Securities
or the New Securities, as the case may be, covered by a Registration
Statement; or (ii) if the Securities were not previously rated, to
cause the Securities covered by a Registration Statement to be rated
with at least one nationally recognized statistical rating agency, if
so requested by Majority Holders with respect to the related
Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or participate as a member of an underwriting syndicate or
selling group or "assist in the distribution" (within the meaning of
the Rules of Fair Practice and the By-Laws of the National Association
of Securities Dealers, Inc.) thereof, whether as a Holder of such
Securities or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such
Broker-Dealer in complying with the requirements of such Rules and
By-Laws, including, without limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto
and, if any portion of the offering contemplated by such
Registration Statement is an underwritten offering or is made
through a placement or sales agent, to recommend the yield of
such Securities;
15
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in
Section 6 hereof; and
(iii) providing such information to such Broker-Dealer as
may be required in order for such Broker-Dealer to comply with
the requirements of such Rules.
(iv) The Company and the Guarantors shall use their best
efforts to take all other steps necessary to effect the
registration of the Securities or the New Securities, as the case
may be, covered by a Registration Statement.
6. Registration Expenses. The Company and the Guarantors shall bear all
expenses incurred in connection with the performance of their obligations under
Sections 2, 3 and 5 hereof and, in the event of any Shelf Registration
Statement, will reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act as counsel for
the Holders in connection therewith, and, in the case of any Exchange Offer
Registration Statement, will reimburse the Initial Purchasers for the reasonable
fees and disbursements of counsel acting in connection therewith.
7. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and severally, agree to
indemnify and hold harmless each Holder of Securities or New Securities, as
the case may be, covered by any Registration Statement (including each
Initial Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 5(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each
Person who controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary Prospectus or the
Prospectus, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse each such
indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the
Company and the Guarantors will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company and the Guarantors by or on
behalf of any such Holder specifically for inclusion therein. This
indemnity agreement will be in addition to any liability that the Company
and the Guarantors may otherwise have.
16
The Company and the Guarantors also, jointly and severally, agree to
indemnify or contribute as provided in Section 7(d) to Losses of any underwriter
of any Securities or New Securities, as the case may be, registered under a
Shelf Registration Statement, their directors, officers, employees or agents and
each Person who controls such underwriter on substantially the same basis as
that of the indemnification of the Initial Purchasers and the selling Holders
provided in this Section 7(a) and shall, if requested by any Holder, enter into
an underwriting agreement reflecting such agreement, as provided in Section 5(p)
hereof.
With respect to any untrue statement or omission of material fact made in
any preliminary Prospectus, the indemnity agreement contained in this Section
7(a) shall not inure to the benefit of any indemnified person from whom the
person asserting any such loss, claim, damage or liability purchased the
securities concerned, to the extent that any such loss, claim, damage or
liability of such indemnified person occurs under the circumstance where it
shall have been determined by a court of competent jurisdiction by final and
non-appealable judgment that (w) the Company had previously furnished copies of
the Final Prospectus to such indemnified person, (x) delivery of the Final
Prospectus was required by the Act to be made to such person, (y) the untrue
statement or omission of a material fact contained in the preliminary Prospectus
was corrected in the Final Prospectus and (z) there was not sent or given to
such person, at or prior to the written confirmation of the sale of such
securities to such person, a copy of the Final Prospectus.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 5(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Company and the
Guarantors, each of their directors, each of their officers who sign such
Registration Statement and each Person who controls the Company or any of
the Guarantors within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Company and the
Guarantors to each such Holder, but only with reference to written
information relating to such Holder furnished to the Company and the
Guarantors by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability that any such Holder may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any
17
separate counsel retained by the indemnified party or parties except
as set forth below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the
indemnified party in an action, the indemnified party shall have the
right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest; (ii) the actual or potential
defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii)
the indemnifying party shall not have employed counsel satisfactory to
the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action; or
(iv) the indemnifying party shall authorize the indemnified party to
employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of
any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or
(b) of this Section is unavailable to or insufficient to hold harmless
an indemnified party for any reason, then each applicable indemnifying
party shall have a joint and several obligation to contribute to the
aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified
party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial
Placement and the Registration Statement which resulted in such
Losses; provided, however, that in no case shall any Initial Purchaser
or any subsequent Holder of any Security or New Security be
responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the
case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth on the cover page of
the Final Memorandum, nor shall any underwriter be responsible for any
amount in excess of the underwriting discount or commission applicable
to the securities purchased by such underwriter under the Registration
Statement which resulted in such Losses. If the allocation provided by
the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such
proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of such indemnifying party, on
the one hand, and such indemnified party, on the other hand, in
connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Guarantors shall be deemed to
be equal to the sum of (x) the total net proceeds from the Initial
Placement (before
18
deducting expenses) as set forth on the cover page of the Final
Memorandum and (y) the total amount of additional interest which the
Company and the Guarantors were not required to pay as a result of
registering the securities covered by the Registration Statement which
resulted in such Losses. Benefits received by the Initial Purchasers
shall be deemed to be equal to the total purchase discounts and
commissions as set forth on the cover page of the Final Memorandum,
and benefits received by any other Holders shall be deemed to be equal
to the value of receiving Securities or New Securities, as applicable,
registered under the Act. Benefits received by any underwriter shall
be deemed to be equal to the total underwriting discounts and
commissions, as set forth on the cover page of the Prospectus forming
a part of the Registration Statement which resulted in such Losses.
Relative fault shall be determined by reference to, among other
things, whether any alleged untrue statement or omission relates to
information provided by the indemnifying party, on the one hand, or by
the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties
agree that it would not be just and equitable if contribution were
determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or any other method of allocation which
does not take account of the equitable considerations referred to
above. Notwithstanding the provisions of this paragraph (d), no Person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each Person who controls a Holder within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of such Holder shall have the same rights to
contribution as such Holder, and each Person who controls the Company
or any of the Guarantors within the meaning of either the Act or the
Exchange Act, each officer of the Company or any of the Guarantors who
shall have signed the Registration Statement and each director of the
Company or any of the Guarantors shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Holder or the Company and the Guarantors or any of the officers,
directors or controlling Persons referred to in this Section hereof,
and will survive the sale by a Holder of securities covered by a
Registration Statement.
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as the case may be,
covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell
such Person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such
19
arrangements; and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
9. No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, 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 the
Majority Holders; provided that, with respect to any matter that directly or
indirectly affects the rights of any Initial Purchaser hereunder, the Company
shall obtain the written consent of each such Initial Purchaser against which
such amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Holders
representing a majority of the aggregate principal amount of the Securities or
the New Securities, as the case may be, being sold rather than registered under
such Registration Statement, voting together as a single class.
11. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to Xxxxxxx Xxxxx Xxxxxx Inc;
(b) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at their
respective address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given
when received.
The Initial Purchasers or the Company by notice to the other parties may
designate additional or different addresses for subsequent notices or
communications.
12. Successors. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the
20
New Securities. The Company hereby agrees to extend the benefits of this
Agreement to any Holder of Securities and the New Securities, and any such
Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
13. Counterparts. This agreement may be in signed counterparts, each of
which shall an original and all of which together shall constitute one and the
same agreement.
14. Headings. The headings used herein are for convenience only and shall
not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State of New York.
16. Severability. In the event that any one of more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Securities or New
Securities is required hereunder, Securities or New Securities, as applicable,
held by the Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New
Securities) shall not be counted in determining whether such consent or approval
was given by the Holders of such required percentage.
21
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement and your acceptance shall represent a binding agreement among the
Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
XXXXX BROS. CORPORATION
By: Xxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
XXXXXXX XXXXX XXXXXX INC.
DEUTSCHE BANK SECURITIES INC.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX INCORPORATED
MCDONALD INVESTMENTS INC.
SUNTRUST CAPITAL MARKETS, INC.
NATCITY INVESTMENTS, INC.
ING FINANCIAL MARKETS LLC
U.S. BANCORP XXXXX XXXXXXX INC.
HUNTINGTON CAPITAL CORP.
By: XXXXXXX XXXXX XXXXXX INC.
By: /s/ Xxxx Xxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
22
SUBSIDIARY GUARANTORS
AMERICAN FLANGE & MANUFACTURING CO., INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
BARZON CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
GREAT LAKES CORRUGATED CORP.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
GREIF BROS. CORP. OF OHIO, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
GREIF BROS. SERVICE CORP.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
SIRCO SYSTEMS, LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
SOTERRA LLC
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
23
TAINER TRANSPORT, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
TREND-PAK, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
GREIF CONTAINERS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
GREIF U.S. HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
24
ANNEX A
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
25
ANNEX B
Each Broker-Dealer that receives New Securities for its own account in
exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. See "Plan of
Distribution."
26
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, starting on the Expiration Date and ending on the
close of business one year after the Expiration Date, they will make this
Prospectus, as amended or supplemented, available to any Broker-Dealer for use
in connection with any such resale. In addition, until __________, 200__, all
dealers effecting transactions in the New Securities may be required to deliver
a prospectus.
The Company will not receive any proceeds from any sale of New Securities
by brokers-dealers. New Securities received by Broker-Dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the New Securities or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may
receive compensation in the form of commissions or concessions from any such
Broker-Dealer and/or the purchasers of any such New Securities. Any
Broker-Dealer that resells New Securities that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Company and the
Guarantors will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holder of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Securities (including
any Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
27
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH
TO RECEIVE 10 ADDITIONAL COPIES OF THE
PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
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Address:
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Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
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