EXHIBIT 4.3
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REGISTRATION RIGHTS AGREEMENT
Dated as of May 28, 1998
By and Among
XXXX CORP.
as Issuer
THE GUARANTORS
named herein
and
BT ALEX. XXXXX INCORPORATED
BEAR, XXXXXXX & CO. INC.
and
XXXXXX XXXXXXX & CO. INCORPORATED
as Initial Purchasers
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$100,000,000
10 1/4% SENIOR SUBORDINATED NOTES DUE 2008
TABLE OF CONTENTS
PAGE
1. Definitions .............................................................. 1
2. Exchange Offer ............................................................5
3. Shelf Registration ........................................................9
4. Additional Interest ......................................................10
5. Registration Procedures ..................................................12
6. Registration Expenses ....................................................23
7. Indemnification ..........................................................25
8. Rule 144 and 144A ........................................................29
9. Underwritten Registrations ...............................................29
10. Miscellaneous ...........................................................30
(a) No Inconsistent Agreements .......................................30
(b) Adjustments Affecting Registrable
Securities .....................................................30
(c) Amendments and Waivers ...........................................30
(d) Notices ..........................................................31
(e) Successors and Assigns ...........................................32
(f) Counterparts .....................................................32
(g) Headings .........................................................32
(h) Governing Law ....................................................32
(i) Severability .....................................................33
(j) Securities Held by the Issuers or
Their Affiliates ...............................................33
(k) Third Party Beneficiaries ........................................33
(l) Entire Agreement .................................................33
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "AGREEMENT") is dated
as of May 28, 1998 by and among Xxxx Corp., a Delaware corporation (the
"COMPANY"), the Guarantors named on the signature pages hereto (the "Guarantors"
and, together with the Company, the "Issuers") and BT Alex. Xxxxx Incorporated,
Bear, Xxxxxxx & Co. Inc. and Xxxxxx Xxxxxxx & Co. Incorporated (the "INITIAL
PURCHASERS").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of May 22, 1998, between the Company, the Guarantors and the
Initial Purchasers (the "PURCHASE AGREEMENT") that provides for the sale by the
Company to the Initial Purchasers of $100,000,000 aggregate principal amount of
the Company's 10 1/4% Senior Subordinated Notes due 2008 (the "NOTES"). The
Notes will be guaranteed (the "Guarantees") on a senior basis by the Guarantors.
The Notes and the Guarantees together are herein referred to as the
"SECURITIES". In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide the registration rights
set forth in this Agreement for the benefit of the Initial Purchasers and their
direct and indirect transferees and assigns. The execution and delivery of this
Agreement is a condition to the Initial Purchasers' obligation to purchase the
Securities under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
ADDITIONAL INTEREST: See Section 4(a) hereof.
ADVICE: See the last paragraph of Section 5 hereof.
AGREEMENT: See the first introductory paragraph
hereto.
APPLICABLE PERIOD: See Section 2(b) hereof.
CLOSING DATE: The Closing Date as defined in the
Purchase Agreement.
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COMPANY: See the first introductory paragraph
hereto.
EFFECTIVENESS DATE: The date that is 150 days after
the Issue Date.
EFFECTIVENESS PERIOD: See Section 3(a) hereof.
EVENT DATE: See Section 4(b) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
EXCHANGE OFFER: See Section 2(a) hereof.
EXCHANGE REGISTRATION STATEMENT: See Section 2(a)
hereof.
EXCHANGE SECURITIES: See Section 2(a) hereof.
FILING DATE: Within 60 days after the Issue Date.
HOLDER: Any holder of a Registrable Security or
Registrable Securities.
INDEMNIFIED PERSON: See Section 7(c) hereof.
INDEMNIFYING PERSON: See Section 7(c) hereof.
INDENTURE: The Indenture, dated as of May 28, 1998 by and
among the Company, the Guarantors and State Street Bank and Trust Company, as
trustee, pursuant to which the Securities are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
INITIAL PURCHASER: See the first introductory
paragraph hereto.
INSPECTORS: See Section 5(o) hereof.
ISSUE DATE: The date on which the original
Securities were sold to the Initial Purchasers pursuant to the
Purchase Agreement.
ISSUERS: See the introductory paragraph hereto.
NASD: See Section 5(s) hereof.
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NOTES: See the second introductory paragraph hereto.
PARTICIPANT: See Section 7(a) hereof.
PARTICIPATING BROKER-DEALER: See Section 2(b)
hereof.
PERSON: An individual, trustee, corporation, partnership,
limited liability company, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
PRIVATE EXCHANGE: See Section 2(b) hereof.
PRIVATE EXCHANGE SECURITIES: See Section 2(b)
hereof.
PROSPECTUS: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any 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 prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Securities covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the second introductory
paragraph hereto.
RECORDS: See Section 5(o) hereof.
REGISTRABLE SECURITIES: Each Security upon original issuance
of the Securities and at all times subsequent thereto, each Exchange Security as
to which Section 2(c)(v) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Security upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Security, Exchange Security or Private Exchange Security, as the case may
be, the earliest to occur of (i) a Registration Statement (other than, with
respect to any Exchange Security as to which Section 2(c)(v) hereof is
applicable, the Exchange Registration Statement) covering such Security,
Exchange Security or Private Exchange Security, as the case may be, has been
declared effective by the SEC and such
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Security, Exchange Security or Private Exchange Security, as the case may be,
has been disposed of in accordance with such effective Registration Statement,
(ii) such Security, Exchange Security or Private Exchange Security, as the case
may be, is sold in compliance with Rule 144, (iii) such Security has been
exchanged for an Exchange Security or Exchange Securities pursuant to an
Exchange Offer and is entitled to be resold without complying with the
prospectus delivery requirements of the Securities Act or (iv) such Security,
Exchange Security or Private Exchange Security, as the case may be, ceases to be
outstanding for purposes of the Indenture.
REGISTRATION STATEMENT: Any registration statement of the
Company, including, but not limited to, the Exchange Registration Statement and
any registration statement filed in connection with a Shelf Registration, filed
with the SEC 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 material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
RULE 144: Rule 144 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
RULE 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than Rule
144) or regulation hereafter adopted by the SEC.
RULE 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: See the second introductory paragraph
hereto.
SECURITIES ACT: The Securities Act of 1933, as
amended, and the rules and regulations of the SEC promulgated
thereunder.
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SHELF NOTICE: See Section 2(c) hereof.
SHELF REGISTRATION: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if
existent, the trustee under any indenture governing the
Exchange Securities and Private Exchange Securities (if any).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. EXCHANGE OFFER
(a) The Company and the Guarantors shall file with the SEC no later
than the Filing Date an offer to exchange (the "EXCHANGE OFFER") any and all of
the Registrable Securities (other than the Private Exchange Securities, if any)
for a like aggregate principal amount of debt securities of the Company that are
identical in all material respects to the Securities (the "EXCHANGE SECURITIES")
(and that are entitled to the benefits of the Indenture or a trust indenture
that is identical in all material respects to the Indenture (other than such
changes to the Indenture or any such identical trust indenture as are necessary
to comply with any requirements of the SEC to effect or maintain the
qualification thereof under the TIA) and that, in either case, has been
qualified under the TIA), except that the Exchange Securities (other than
Private Exchange Securities, if any) shall have been registered pursuant to an
effective Registration Statement under the Securities Act and shall contain no
restrictive legend thereon. The Exchange Offer shall be registered under the
Securities Act on the appropriate form (the "EXCHANGE REGISTRATION STATEMENT")
and shall comply with all applicable tender offer rules and regulations under
the Exchange Act. The Company and the Guarantors agree to use their respective
reasonable best efforts to (x) cause the Exchange Registration Statement to be
declared effective under the Securities Act on or before the Effectiveness Date;
(y) keep the Exchange Offer open for at least 20 business days (or longer if
required by applicable law) after the date that notice of the Exchange Offer is
mailed to Holders; and (z) consummate the Exchange Offer on or prior to the
190th day following the Issue Date. If after such Exchange Registration
Statement is declared effective by the SEC, the Exchange Offer or the issuance
of the Exchange Securities thereunder is interfered with by any stop order,
injunction or other order or re-
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quirement of the SEC or any other governmental agency or court, such Exchange
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement. Each Holder who participates in the Exchange Offer will be
required to represent in writing that any Exchange Securities received by it
will be acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Securities in violation of the provisions of the Securities Act and that such
Holder is not an affiliate of the Company or the Guarantors within the meaning
of the Securities Act and is not acting on behalf of any persons or entities who
could not truthfully make the foregoing representations. Upon consummation of
the Exchange Offer in accordance with this Section 2, the provisions of this
Agreement shall continue to apply, MUTATIS MUTANDIS, solely with respect to
Registrable Securities that are Private Exchange Securities and Exchange
Securities held by Participating Broker-Dealers, and the Company shall have no
further obligation to register Registrable Securities (other than Private
Exchange Securities and other than in respect of any Exchange Securities as to
which clause 2(c)(v) hereof applies) pursuant to Section 3 hereof. No securities
other than the Exchange Securities shall be included in
the Exchange Registration Statement.
(b) The Company and the Guarantors shall include within the Prospectus
contained in the Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers, that shall
contain a summary statement of the positions taken or policies made by the Staff
of the SEC with respect to the potential "underwriter" status of any
broker-dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Securities received by such broker-dealer in the
Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such positions or
policies have been publicly disseminated by the staff of the SEC or such
positions or policies, in the judgment of the Initial Purchasers, represent the
prevailing views of the Staff of the SEC. Such "Plan of Distribution" section
shall also expressly permit the use of the Prospectus by all Persons subject to
the prospectus delivery requirements of the Securities Act, including all
Participating Broker-Dealers, and include a statement describing the means by
which Participating Broker-Dealers may resell the Exchange Securities.
The Company and the Guarantors shall use their respective
reasonable best efforts to keep the Exchange Registra-
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tion Statement effective and to amend and supplement the Prospectus contained
therein in order to permit such Prospectus to be lawfully delivered by all
Persons subject to the prospectus delivery requirements of the Securities Act
for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Securities; PROVIDED, HOWEVER, that
such period shall not exceed [270] days after the consummation of the Exchange
Offer (or such longer period if extended pursuant to the last paragraph of
Section 5 hereof) (the "APPLICABLE PERIOD").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Securities acquired by them and having, or that are
reasonably likely to be determined to have, the status of an unsold allotment in
the initial distribution, the Issuers, upon the request of the Initial
Purchasers simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, shall issue and deliver to the Initial Purchasers in exchange
(the "PRIVATE EXCHANGE") for such Securities held by the Initial Purchasers a
like principal amount of debt securities of the Issuers that are identical in
all material respects to the Exchange Securities(the "PRIVATE EXCHANGE
SECURITIES") (and that are issued pursuant to the same indenture as the Exchange
Securities), except for the placement of a restrictive legend on such Private
Exchange Securities. The Private Exchange Securities shall bear the same CUSIP
number as the Exchange Securities.
Interest on the Exchange Securities and the Private Exchange
Securities will accrue from the last interest payment date on which interest was
paid on the Securities surrendered in exchange therefor or, if no interest has
been paid on the Securities, from the Issue Date.
In connection with the Exchange Offer, the Company and the
Guarantors shall:
(1) mail to each Holder a copy of the Prospectus forming
part of the Exchange Registration Statement, together with an appropriate letter
of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The
City of New York;
(3) permit Holders to withdraw tendered Securities at any
time prior to the close of business, New York time,
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on the last business day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Company and the Guarantors
shall:
(1) accept for exchange all Securities properly tendered and
not validly withdrawn pursuant to the Exchange Offer or
the Private Exchange;
(2) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly
to each Holder of Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Securities of
such Holder so accepted for exchange.
The Exchange Securities and the Private Exchange Securities
may be issued under (i) the Indenture or (ii) an indenture identical in all
material respects to the Indenture, which in either event shall provide that (1)
the Exchange Securities shall not be subject to the transfer restrictions set
forth in the Indenture and (2) the Private Exchange Securities shall be subject
to the transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Securities, the Private Exchange
Securities and the Notes shall vote and consent together on all matters as one
class and that neither the Exchange Securities, the Private Exchange Securities
or the Securities will have the right to vote or consent as a separate class on
any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the Staff of the SEC, the Issuers are not permitted to effect
an Exchange Offer, (ii) the Exchange Offer is not consummated within 190 days of
the Issue Date, (iii) the holder of Private Exchange Securities so requests at
any time after the consummation of the Private Exchange, (iv) the Holders of not
less than a majority in aggregate principal amount of the Registrable Securities
determine that the interests of the Holders would be materially adversely
affected by consummation of the Exchange Offer or (v) in the case of any Holder
that participates in the Exchange Offer,
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such Holder does not receive Exchange Securities on the date of the exchange
that may be sold without restriction under state and federal securities laws
(other than due solely to the status of such Holder as an affiliate of the
Company or any of the Guarantors within the meaning of the Securities Act), then
the Company shall promptly deliver written notice thereof (the "SHELF NOTICE")
to the Trustee and in the case of clauses (i), (ii) and (iv), all Holders, in
the case of clause (iii), the Holders of the Private Exchange Securities and in
the case of clause (v), the affected Holder, and shall file a Shelf Registration
pursuant to Section 3 hereof.
3. SHELF REGISTRATION
If a Shelf Notice is delivered as contemplated by Section 2(c)
hereof, then:
(a) SHELF REGISTRATION. The Company and the Guarantors shall
as promptly as reasonably practicable file with the SEC a Registration Statement
for an offering to be made on a continuous basis pursuant to Rule 415 covering
all of the Registrable Securities (the "SHELF REGISTRATION"). If the Company and
the Guarantors shall not have yet filed an Exchange Registration Statement, the
Company and the Guarantors shall use their respective reasonable best efforts to
file with the SEC the Shelf Registration on or prior to the Filing Date. The
Shelf Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Securities for resale by Holders in the manner
or manners designated by them (including, without limitation, one or more
underwritten offerings). The Company and the Guarantors shall not permit any
securities other than the Registrable Securities to be included in the Shelf
Registration.
The Company and the Guarantors shall use their respective
reasonable best efforts to cause the Shelf Registration to be declared effective
under the Securities Act on or prior to the Effectiveness Date and to keep the
Shelf Registration continuously effective under the Securities Act until the
date that is two years from the Issue Date (the "EFFECTIVENESS PERIOD"), or such
shorter period ending when all Registrable Securities covered by the Shelf
Registration have been sold in the manner set forth and as contemplated in the
Shelf Registration.
(b) WITHDRAWAL OF STOP ORDERS. If the Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of
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all of the securities registered thereunder), the Company and the Guarantors
shall use their respective reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof.
(c) SUPPLEMENTS AND AMENDMENTS. The Company and the Guarantors
shall promptly supplement and amend the Shelf Registration if required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration, if required by the Securities Act, or if reasonably
requested by the Holders of a majority in aggregate principal amount of the
Registrable Securities covered by such Registration Statement or by any
underwriter of such Registrable Securities.
4. ADDITIONAL INTEREST
(a) The Company, the Guarantors and the Initial Purchasers
agree that the Holders of Registrable Securities will suffer damages if the
Company and the Guarantors fail to fulfill their respective obligations under
Section 2 or Section 3 hereof and that it would not be feasible to ascertain the
extent of such damages with precision. Accordingly, the Company and the
Guarantors agree to pay, as liquidated damages, additional interest on the
Securities("ADDITIONAL INTEREST") under the circumstances and to the extent set
forth below (without duplication):
(i) if neither the Exchange Registration Statement nor the
Shelf Registration has been filed on or prior to the Filing Date,
Additional Interest shall accrue on the Securities over and above the
stated interest at a rate of 0.50% per annum for the first 90 days
immediately following the Filing Date, such Additional Interest rate
increasing by an additional 0.50% per annum at the beginning of each
subsequent 90-day period;
(ii) if neither the Exchange Registration Statement nor the
Initial Shelf Registration is declared effective by the SEC on or prior
to the Effectiveness Date, then, commencing on the 151st day after the
Issue Date, Additional Interest shall be accrued on the Securities
included or that should have been included in such Registration
Statement over and above the stated interest at a rate of 0.50% per
annum for the first 90 days immediately following the Effectiveness
Date, such Additional Interest rate increasing by an additional 0.50%
per annum at the beginning of each subsequent 90-day period; and
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(iii) if either (A) the Company and the Guarantors have not
exchanged Exchange Securities for all Securities validly tendered in
accordance with the terms of the Exchange Offer on or prior to the
190th day after the Issue Date or (B) the Exchange Registration
Statement ceases to be effective at any time prior to the time that the
Exchange Offer is consummated or (C) if applicable, the Shelf
Registration has been declared effective and such Shelf Registration
ceases to be effective at any time during the Effectiveness Period,
then Additional Interest shall be accrued on the Securities(over and
above any interest otherwise payable on the Securities) at a rate of
0.50% per annum on (x) the 191st day after the Issue Date, in the case
of (A) above, or (y) the day the Exchange Registration Statement ceases
to be effective without being declared effective within five business
days in the case of (B) above, or (z) the day such Shelf Registration
ceases to be effective, in the case of (C) above, such Additional
Interest rate increasing by an additional 0.50% per annum at the
beginning of each such subsequent 90-day period (it being understood
and agreed that, notwithstanding any provision to the contrary, so long
as any Security that is the subject of a Shelf Notice is then covered
by an effective Shelf Registration Statement, no Additional Interest
shall accrue on such Security);
PROVIDED, HOWEVER, that the Additional Interest rate on any affected Security
may not exceed at any one time in the aggregate 2.0% per annum; and PROVIDED,
FURTHER, that (1) upon the filing of the Exchange Registration Statement or a
Shelf Registration (in the case of clause (i) of this Section 4(a)), (2) upon
the effectiveness of the Exchange Registration Statement or the Shelf
Registration (in the case of clause (ii) of this Section 4(a)), or (3) upon the
exchange of Exchange Securities for all Securities tendered (in the case of
clause (iii)(A) of this Section 4(a)), or upon the effectiveness of the Exchange
Registration Statement that had ceased to remain effective (in the case of
(iii)(B) of this Section 4(a)) or upon the effectiveness of the Shelf
Registration that had ceased to remain effective (in the case of (iii)(C) of
this Section 4(a)), Additional Interest on the affected Securities as a result
of such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.
(b) The Company and the Guarantors shall notify the Trustee
within one business day after each and every date on which an event occurs in
respect of which Additional Interest is required to be paid (an "EVENT DATE").
Any amounts of Addi-
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tional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4
will be payable in cash semi-annually on each June 1 and December 1 (to the
holders of record on the May 15 and November 15 immediately preceding such
dates), commencing with the first such date occurring after any such Additional
Interest commences to accrue. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Securities, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
consisting of twelve 30-day months and, in the case of a partial month, the
actual number of days elapsed) and the denominator of which is 360.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Company and the Guarantors shall effect
such registrations to permit the sale of the securities covered thereby in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto and in connection with any Registration Statement filed by the
Company and the Guarantors hereunder, the Company and the Guarantors shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by
Sections 2 or 3 hereof, and use its reasonable best efforts to cause
each such Registration Statement to become effective and remain
effective as provided herein; PROVIDED, HOWEVER, that, if (1) such
filing is pursuant to Section 3 hereof or (2) a Prospectus contained in
an Exchange Registration Statement filed pursuant to Section 2 hereof
is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities
during the Applicable Period, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Company and
the Guarantors shall furnish to and afford the Holders of the
Registrable Securities covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto) proposed to
be filed (in each case at least three business days prior to such
filing). The
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Company and the Guarantors shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a
majority in aggregate principal amount of the Registrable Securities
covered by such Registration Statement, or any such Participating
Broker-Dealer, as the case may be, or their counsel, or the managing
underwriters, if any, shall reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period, as the case may be; cause the related
Prospectus to be supplemented by any prospectus supplement required by
applicable law, and as so supplemented to be filed pursuant to Rule 424
(or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition
of all securities covered by such Registration Statement as so amended
or in such Prospectus as so supplemented and with respect to the
subsequent resale of any securities being sold by a Participating
Broker-Dealer covered by any such Prospectus; the Company and the
Guarantors shall be deemed not to have used their respective reasonable
best efforts to keep a Registration Statement effective during the
Applicable Period if each of the Company and the Guarantors voluntarily
takes any action that would result in selling Holders of the
Registrable Securities covered thereby or Participating Broker-Dealers
seeking to sell Exchange Securities not being able to sell such
Registrable Securities or such Exchange Securities during that period,
unless such action is required by applicable law or unless the Company
and the Guarantors comply with this Agreement, including without
limitation, the provisions of paragraph 5(k) hereof and the last
paragraph of this Section 5.
(c) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
notify the selling Holders of Registrable Securities, or each such
Participating Broker-Dealer, as the case may be, their counsel and the
managing underwriters, if any,
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promptly (but in any event within two business days) and confirm such
notice in writing, (i) when a Prospectus or any Prospectus supplement
or post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same
has become effective under the Securities Act (including in such notice
a written statement that any Holder may, upon request, obtain, at the
sole expense of the Issuers, one conformed copy of such Registration
Statement or post-effective amendment including financial statements
and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii)
if at any time when a prospectus is required by the Securities Act to
be delivered in connection with sales of the Registrable Securities or
resales of Exchange Securities by Participating Broker-Dealers the
representations and warranties of the Issuers contained in any
agreement (including any underwriting agreement), contemplated by
Section 5(n) hereof cease to be true and correct, (iv) of the receipt
by the Issuers of any notification with respect to the suspension of
the qualification or exemption from qualification of a Registration
Statement or any of the Registrable Securities or the Exchange
Securities to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction, or the initiation or written threat of any
proceeding for such purpose, (v) of the happening of any event, the
existence of any condition or any information becoming known that makes
any statement made in such Registration Statement or related Prospectus
or any document incorporated or deemed to be incorporated therein by
reference untrue in any material respects or that requires the making
of any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will 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
that in the case of the Prospectus, it will 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 and (vi) of the Issuers'
-15-
determination that a post-effective amendment to a Registration
Statement would be appropriate.
(d) Use their respective reasonable best efforts to prevent
the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use
of a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Securities or the Exchange
Securities for sale in any jurisdiction and, if any such order is
issued, to use their reasonable best efforts to obtain the withdrawal
of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested by the managing underwriter or underwriters, if any, or
the Holders of a majority in aggregate principal amount of the
Registrable Securities being sold in connection with an underwritten
offering, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter
or underwriters, if any, such Holders or counsel for any of them
determine is reasonably necessary to be included therein, (ii) make all
required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment and (iii) supplement or make
amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
furnish to each selling Holder of Registrable Securities and to each
such Participating Broker-Dealer who so requests and to their
respective counsel and each managing underwriter, if any, at the sole
expense of the Issuers, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment
thereto, including financial statements and schedules and, if
requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
-16-
(g) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
deliver to each selling Holder of Registrable Securities, or each such
Participating Broker-Dealer, as the case may be, their respective
counsel and the underwriters, if any, at the sole expense of the
Issuers, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such
Persons may reasonably request; and, subject to the last paragraph of
this Section 5, the Company and the Guarantors hereby consent to the
use of such Prospectus and each amendment or supplement thereto by each
of the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, and the underwriters
or agents, if any, and dealers, if any, in connection with the offering
and sale of the Registrable Securities covered by, or the sale by
Participating Broker-Dealers of the Exchange Securities pursuant to,
such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or
Exchange Securities or any delivery of a Prospectus contained in the
Exchange Registration Statement by any Participating Broker-Dealer who
seeks to sell Exchange Securities during the Applicable Period, to use
their reasonable best efforts to register or qualify and to cooperate
with the selling Holders of Registrable Securities or each such
Participating Broker-Dealer, as the case may be, the managing
underwriter or underwriters, if any, and their respective counsel in
connection with the registration or qualification (or exemption from
such registration or qualification) of such Registrable Securities for
offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer or the managing underwriter or underwriters
reasonably request in writing; PROVIDED, HOWEVER, that where Exchange
Securities held by Participating Broker-Dealers or Registrable
Securities are offered other than through an underwritten offering, the
Company and the Guarantors agree to cause their counsel to perform Blue
Sky investigations and file registrations and qualifications required
to be filed pursuant to this Section 5(h); use their reasonable best
ef-
-17-
forts to keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is
required to be kept effective and do any and all other acts or things
reasonably necessary or advisable to enable the disposition in such
jurisdictions of the Exchange Securities held by Participating
Broker-Dealers or the Registrable Securities covered by the applicable
Registration Statement; PROVIDED, HOWEVER, that none of the Company or
the Guarantors shall be required to (A) qualify generally to do
business in any jurisdiction where it is not then so qualified, (B)
take any action that would subject it to general service of process in
any such jurisdiction where it is not then so subject or (C) subject
itself to taxation in any such jurisdiction where it is not then so
subject.
(i) If a Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the
timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates shall not bear
any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company; and enable such Registrable
Securities to be in such denominations and registered in such names as
the managing underwriter or underwriters, if any, or Holders may
reasonably request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the Holders thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a consequence of the
nature of such selling Holder's business, in which case the Company and
the Guarantors will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
upon the occurrence of any event contemplated by paragraph 5(c)(v)
-18-
or 5(c)(vi), hereof, as promptly as practicable prepare and (subject to
Section 5(a) hereof) file with the SEC, at the Issuers' sole expense, a
supplement or post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder or to the purchasers
of the Exchange Securities to whom such Prospectus will be delivered by
a Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a 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.
(l) Use their respective reasonable best efforts to cause the
Registrable Securities covered by a Registration Statement or the
Exchange Securities, as the case may be, to be rated with the
appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement or the Exchange Securities, as
the case may be, or the managing underwriter or underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Securities, (i) provide the
Trustee with certificates for the Registrable Securities or Exchange
Securities, as the case may be, in a form eligible for deposit with The
Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities or Exchange Securities, as the case may be.
(n) In connection with any underwritten offering of
Registrable Securities pursuant to a Shelf Registration, enter into an
underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Securities and take all such other
actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the
disposition of such Registrable Securities and, in such connection, (i)
make such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers and their
subsidiaries (including any acquired business, properties or entity, if
-19-
applicable) and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Securities,
and confirm the same in writing if and when requested; (ii) obtain the
written opinion of counsel to the Issuers and written updates thereof
in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters, addressed to the underwriters covering the
matters customarily covered in opinions requested in underwritten
offerings of debt similar to the Securities and such other matters as
may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof
in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of any subsidiary of the Issuers or of any
business acquired by the Issuers for which financial statements and
financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings of debt securities similar to the
Securities and such other matters as reasonably requested by the
managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable
Securities covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to
be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the extent
required thereunder.
(o) If (1) a Shelf Registration is filed pursuant to Section 3
hereof or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Securities during the Applicable Period,
upon reasonable advance notice make available for inspection by
-20-
any selling Holder of such Registrable Securities being sold, or each
such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Securities, if
any, and any attorney, accountant or other agent retained by any such
selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "INSPECTORS"), at the offices
where normally kept, during reasonable business hours without
interfering in the orderly business of the Company or Guarantors, all
financial and other records, pertinent corporate documents and
instruments of the Issuers and their subsidiaries (collectively, the
"RECORDS") as shall be reasonably necessary to enable them to exercise
any applicable due diligence responsibilities, and cause the respective
officers, directors and employees of the Issuers and their subsidiaries
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Issuers
determine, in good faith, to be confidential and any Records that they
notify the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to
avoid or correct a material misstatement or omission in such
Registration Statement, (ii) the release of such Records is ordered
pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) after giving reasonable prior notice to the
Company, disclosure of such information is, in the opinion of counsel
for any Inspector, necessary or advisable in connection with any
action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon,
relating to or involving this Agreement or any transactions
contemplated hereby or arising hereunder or (iv) the information in
such Records has been made generally available to the public. Each
selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Company unless and until such
information is generally available to the public. Each selling Holder
of such Registrable Securities and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Company and allow the
Company to
-21-
undertake appropriate action to prevent disclosure of the Records
deemed confidential at the Issuers' sole expense.
(p) Provide an indenture trustee for the Registrable
Securities or the Exchange Securities, as the case may be, and cause
the Indenture or the trust indenture provided for in Section 2(a)
hereof, as the case may be, to be qualified under the TIA not later
than the effective date of the Exchange Offer or the first Registration
Statement relating to the Registrable Securities; and in connection
therewith, cooperate with the trustee under any such indenture and the
Holders of the Registrable Securities, to effect such changes to such
indenture as may be required for such indenture to be so qualified in
accordance with the terms of the TIA; and execute, and use its
reasonable best efforts to cause such 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 such indenture to
be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders earning
statements 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 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Securities are sold to underwriters in a firm
commitment or reasonable best efforts underwritten offering and (ii) if
not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Issuers after the effective date
of a Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to the Issuers, who may, at the
Issuer's election, be internal counsel to the Issuers, in a form
customary for underwritten transactions, addressed to the Trustee for
the benefit of all Holders of Registrable Securities participating in
the Exchange Offer or the Private Exchange, as the case may be, that
the Exchange Securities or Private Exchange Securities, as the case may
be, and the related indenture constitute legal, valid and binding
obligations of the Issuers, enforceable against the Issuers in
accordance with
-22-
its respective terms, subject to customary exceptions and
qualifications.
(s) If an Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Securities by Holders to
the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall xxxx, or cause to be
marked, on such Registrable Securities that such Registrable Securities
are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall such
Registrable Securities be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Registrable Securities and
their respective counsel in connection with any filings required to be
made with the National Association of Securities Dealers, Inc. (the
"NASD").
(u) Use their respective reasonable best efforts to take all
other steps necessary or advisable to effect the registration of the
Registrable Securities covered by a Registration Statement contemplated
hereby.
The Company and the Guarantors may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company and the Guarantors such information regarding such seller and the
distribution of such Registrable Securities as the Company and the Guarantors
may, from time to time, reasonably request. The Company and the Guarantors may
exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request and in such event shall have no further obligation under
this Agreement (including, without limitation, obligations under Section 4
hereof) with respect to such seller or any subsequent holder of such Registrable
Securities. Each seller as to which any Shelf Registration is being effected
agrees to furnish promptly to the Company and the Guarantors all information
required to be disclosed in order to make the information previously furnished
to the Company and the Guarantors by such seller not materially misleading.
-23-
Each Holder of Registrable Securities and each Participating
Broker-Dealer agrees by acquisition of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
that, upon actual receipt of any notice from the Company of the happening of any
event of the kind described in Sections 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Securities covered by such Registration Statement or Prospectus or Exchange
Securities to be sold by such Holder or Participating Broker-Dealer, as the case
may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "ADVICE") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Company shall give any
such notice, each of the Effectiveness Period and the Applicable Period shall be
extended by the number of days during such periods from and including the date
of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
shall have received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 5(k) hereof or (y) the Advice; PROVIDED, HOWEVER, that
the Effectiveness Period shall not be extended for a period longer than two
years from the Issue Date.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Company and the Guarantors shall be borne
by the Company and the Guarantors whether or not the Exchange Offer or a Shelf
Registration is filed or becomes effective, including, without limitation, (i)
all registration and filing fees (including, without limitation, (A) fees with
respect to filings required to be made with the NASD in connection with an
underwritten offering and (B) fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, reasonable fees and
disbursements of counsel in connection with Blue Sky qualifications of the
Registrable Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for investment
under the laws of such jurisdictions (x) where the holders of Registrable
Securities are located, in the case of the Exchange Securities, or (y) as
provided in Section 5(h) hereof, in the case of Regis-
-24-
trable Securities or Exchange Securities to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Securities
or Exchange Securities in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any, by the Holders of
a majority in aggregate principal amount of the Registrable Securities included
in any Registration Statement or sold by any Participating Broker-Dealer, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and fees and disbursements of special
counsel for the sellers of Registrable Securities(subject to the provisions of
Section 6(b) hereof), (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees, if any,
and any fees associated with making the Registrable Securities or Exchange
Securities eligible for trading through the Depository Trust Company, (vii)
Securities Act liability insurance, if the Company desires such insurance,
(viii) fees and expenses of all other Persons retained by the Company, (ix)
internal expenses of the Company (including, without limitation, all salaries
and expenses of officers and employees of the Company performing legal or
accounting duties), (x) the expense of any annual audit, (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (xii) the expenses
relating to printing, word processing and distributing of all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary to comply with this Agreement.
(b) The Company and the Guarantors shall (i) reimburse the
Holders of the Registrable Securities being registered in a Shelf Registration
for the reasonable fees and disbursements of not more than one counsel chosen by
the Holders of a majority in aggregate principal amount of the Registrable
Securities to be included in such Registration Statement and (ii) reimburse
reasonable out-of-pocket expenses (other than legal expenses) of Holders of
Registrable Securities incurred in connection with the registration and sale of
the Registrable Securities pursuant to a Shelf Registration or in connection
with the exchange of Registrable Securities pursuant to the Exchange Offer.
-25-
7. INDEMNIFICATION
(a) Each of the Company and the Guarantors agrees to indemnify
and hold harmless each Holder of Registrable Securities offered pursuant to a
Shelf Registration Statement and each Participating Broker-Dealer selling
Exchange Securities during the Applicable Period, the officers and directors of
each such Person or its affiliates, and each other Person, if any, who controls
any such Person or its affiliates within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "PARTICIPANT"), from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Registrable Securities or
Exchange Securities, as the case may be, is registered (or any amendment
thereto) or related Prospectus (or any amendments or supplements thereto) or any
related preliminary prospectus, or caused by, arising out of or based upon any
omission or alleged omission to state therein a 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; PROVIDED, HOWEVER,
that none of the Company or the Guarantors will be required to indemnify a
Participant if (i) such losses, claims, damages or liabilities are caused by any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Participant
furnished to the Company in writing by or on behalf of such Participant
expressly for use therein or (ii) if such Participant sold to the person
asserting the claim the Registrable Notes or Exchange Securities that are the
subject of such claim and such untrue statement or omission or alleged untrue
statement or omission was contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement thereto and the
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject matter of
the related proceeding and it is established by the Company in the related
proceeding that such Participant failed to deliver or provide a copy of the
Prospectus (as amended or supplemented) to such Person with or prior to the
confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person if required by applicable law, unless such failure to deliver or
provide a copy
-26-
of the Prospectus (as amended or supplemented) was a result of noncompliance by
the Company with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company and each of the Guarantors, the
Company's directors and officers, each Guarantor's directors and officers and
each Person who controls the Company and the Guarantors within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Participant, but only
(i) with reference to information relating to such Participant furnished to the
Company in writing by or on behalf of such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement
thereto or any preliminary prospectus or (ii) with respect to any untrue
statement or representation made by such Participant in writing to the Company.
The liability of any Participant under this paragraph shall in no event exceed
the proceeds received by such Participant from sales of Registrable Securities
or Exchange Securities giving rise to such obligations.
(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the "INDEMNIFIED
PERSON") shall promptly notify the Person against whom such indemnity may be
sought (the "INDEMNIFYING PERSON") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; PROVIDED, HOWEVER, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability that it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in
-27-
any such proceeding (including any impleaded parties) include both the
Indemnifying Person and the Indemnified Person and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that, unless there exists a
conflict among Indemnified Persons, the Indemnifying Person shall not, in
connection with any one such proceeding or separate but substantially similar
related proceeding in the same jurisdiction arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
(in addition to any local counsel) for all Indemnified Persons, and that all
such fees and expenses shall be reimbursed promptly as they are incurred. Any
such separate firm for the Participants and such control Persons of Participants
shall be designated in writing by Participants who sold a majority in interest
of Registrable Securities and Exchange Securities sold by all such Participants
and any such separate firm for the Company, its directors, its officers and such
control Persons of the Company shall be designated in writing by the Company.
The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the Indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an Indemnified
Person shall have requested an Indemnifying Person to reimburse the Indemnified
Person for reasonable fees and expenses actually incurred by counsel as
contemplated by the third sentence of this paragraph, the Indemnifying Person
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (i) such settlement is entered into more than 30
days after receipt by such Indemnifying Person of the aforesaid request and (ii)
such Indemnifying Person shall not have reimbursed the Indemnified Person in
accordance with such request prior to the date of such settlement; PROVIDED,
HOWEVER, that the Indemnifying Person shall not be liable for any settlement
effected without its consent pursuant to this sentence if the Indemnifying
Person is contesting, in good faith, the request for reimbursement. No
Indemnifying Person shall, without the prior written consent of the Indemnified
Person, effect any settlement or compromise of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party, and indemnity could have been sought hereunder by such Indemnified
Person, unless such settlement (A) includes an unconditional written release of
such Indemnified
-28-
Person, in form and substance reasonably satisfactory to such Indemnified
Person, from all liability on claims that are the subject matter of such
proceeding and (B) does not include any statement as to an admission of fault,
culpability or failure to act by or on behalf of any Indemnified Person.
(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is for any reason unavailable to, or
insufficient to hold harmless, an Indemnified Person in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraphs, in lieu of indemnifying such Indemnified Person
thereunder and in order to provide for just and equitable contribution, shall
contribute to the amount paid or payable by such Indemnified Person as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Person or Persons
on the one hand and the Indemnified Person or Persons on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof). The relative fault of the parties shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Issuers on the one hand or such Participant or such
other Indemnified Person, as the case may be, on the other, the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable
if contribution pursuant to this Section 7 were determined by PRO RATA
allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Securities
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or Exchange Securities, as the case may be, exceeds the amount of any damages
that such Participant has otherwise been required to pay or has paid 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 Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability that the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
8. RULE 144 AND 144A
The Company and the Guarantors covenant that they will file
the reports required to be filed by it under the Securities Act and the Exchange
Act and the rules and regulations adopted by the SEC thereunder in a timely
manner in accordance with the requirements of the Securities Act and the
Exchange Act and, if at any time the Company and the Guarantors not required to
file such reports, they will, upon the request of any Holder of Registrable
Securities, make publicly available annual reports and such information,
documents and other reports of the type specified in Sections 13 and 15(d) of
the Exchange Act. The Company and the Guarantors further covenants for so long
as any Registrable Securities remain outstanding, to make available to any
Holder or beneficial owner of Registrable Securities in connection with any sale
thereof and any prospective purchaser of such Registrable Securities from such
Holder or beneficial owner the information required by Rule 144A(d)(4) under the
Securities Act in order to permit resales of such Registrable Securities
pursuant to Rule 144A.
9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Securities covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Securities included in such offering and reasonably acceptable to
the Company and the Guarantors.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the
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basis provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not entered
into, as of the date hereof, and shall not, after the date of this Agreement,
enter into any agreement with respect to any of the Company's securities that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. Except for
registration rights agreements, pursuant to which all necessary waivers have
been received, with GECFS, Inc., Xxxxx Xxxxxxxxxx, Xxxxxx Mas, Xxxx Xxxxx Mas,
Xxxx Xxxxxx Mas and Xxxxxx Capital Advisors, Inc. and Xxxxxx Fund I L.P., the
Issuers have not entered and will not enter into any agreement with respect to
any of the Company's securities that will grant to any Person piggy-back
registration rights with respect to a Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Issuers
shall not, directly or indirectly, take any action with respect to the
Registrable Securities as a class that would adversely affect the ability of the
Holders of Registrable Securities to include such Registrable Securities in a
registration undertaken pursuant to this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given, otherwise than with the
prior written consent of the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Securities. 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, impair,
limit or compromise the rights of other Holders of Registrable Securities may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable Securities being sold by such Holders pursuant to such Registration
Statement; PROVIDED, HOWEVER, that the provisions of this sentence may not be
amended, modified or supplemented except in
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accordance with the provisions of the immediately preceding sentence.
(d) NOTICES. All notices and other communications (including
without limitation any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Securities or any
Participating Broker-Dealer, at the most current address of such Holder
or Participating Broker-Dealer, as the case may be, set forth on the
records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
BT ALEX. XXXXX INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXXX XXXXXXX & CO. INCORPORATED
c/o BT Alex. Xxxxx Incorporated
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Corporate Finance Department
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
2. if to the Initial Purchasers, at the addresses specified in
Section 10(d)(1)
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3. if to the Issuer, at the address as follows:
XXXX CORP.
0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(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; PROVIDED, HOWEVER, that this Agreement shall not inure to the benefit of
or be binding upon a successor or assign of a Holder unless and to the extent
such successor or assign holds Registrable Securities.
(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 an 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, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WHOLLY
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XXXXXX XXX XXXXX XX XXX XXXX, XXXXXXX REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT.
(i) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction 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, and the parties
hereto shall use their reasonable 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 is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) SECURITIES HELD BY THE ISSUERS OR THEIR AFFILIATES.
Whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by the
Issuers or their affiliates (as such term is defined in Rule 405 under the
Securities Act) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k)THIRD PARTY BENEFICIARIES. Holders of Registrable
Securities and Participating Broker-Dealers are intended third party
beneficiaries of this Agreement and this Agreement may be enforced by such
Persons.
(l) ENTIRE AGREEMENT. This Agreement, together with the
Purchase Agreement and the Indenture, is intended by the parties as a final and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein and any and all prior
oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Initial
Purchasers on the one hand and the Issuers on the other, or between or among any
agents, representatives, parents, subsidiaries, affiliates, predecessors in
interest or successors in interest with respect to the subject matter hereof and
thereof are merged herein and replaced hereby.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
XXXX CORP.
By:
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Name:
Title:
XXXX RENTAL INC.
By:
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Name:
Title:
XXXX MACHINERY INC.
By:
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Name:
Title:
BT ALEX. XXXXX INCORPORATED
By:
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Name:
Title:
BEAR, XXXXXXX & CO. INC.
By:
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Name:
Title:
XXXXXX XXXXXXX & CO. INCORPORATED
By:
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Name:
Title:
