REGISTRATION RIGHTS AGREEMENT by and among American Reprographics Company, the Guarantors party hereto and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representative of the Initial Purchasers Dated as of December 1, 2010
Exhibit 4.3
Execution Version
by and among
the Guarantors party hereto
and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
as representative of the Initial Purchasers
as representative of the Initial Purchasers
Dated as of December 1, 2010
This Registration Rights Agreement (this “Agreement”) is made and entered into as of December
1, 2010, by and among American Reprographics Company, a Delaware corporation (the “Company”), the
guarantors named in Schedule A and any subsidiary of the Company formed or acquired after the
Closing Date that executes an additional guarantee in accordance with the terms of the Indenture
(as defined below), and their respective successors and assigns (collectively, the “Guarantors”),
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, on behalf of itself and as representative
(the “Representative”) of the several initial purchasers listed on Schedule A to the Purchase
Agreement (as defined below) (collectively, the “Initial Purchasers”), who have agreed to purchase
the Company’s 10.5% Senior Notes due 2016 (the “Initial Notes”) guaranteed by the Guarantors (the
“Guarantees”) pursuant to the Purchase Agreement (as defined below). The Initial Notes and the
Guarantees attached thereto are herein collectively referred to as the “Initial Securities.”
This Agreement is made pursuant to the Purchase Agreement, dated November 23, 2010 (the
“Purchase Agreement”), among the Company, the Guarantors and the Initial Purchasers (i) for the
benefit of the Initial Purchasers and (ii) for the benefit of the holders from time to time of
Initial Securities, including the Initial Purchasers. In order to induce the Initial Purchasers to
purchase the Securities, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchasers set forth in Section 5(f) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. Definitions. As used in this Agreement, the following capitalized terms shall have
the following meanings:
Additional Interest: As defined in Section 5 hereof.
Advice: As defined in Section 6(c) hereof.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Business Day: Any day other than a Saturday, Sunday or U.S. federal holiday or a day on which
banking institutions or trust companies located in New York, New York are authorized or obligated
to be closed.
Closing Date: The date of this Agreement.
Commission: The U.S. Securities and Exchange Commission.
Consummate: A registered Exchange Offer shall be deemed “Consummated” for purposes of this
Agreement upon the occurrence of (i) the filing and effectiveness under the Securities Act of the
Exchange Offer Registration Statement relating to the Exchange Securities to be issued in the
Exchange Offer, (ii) the maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company to the
Registrar (as defined in the indenture) under the Indenture of Exchange Securities in the same
aggregate principal amount as the aggregate principal amount of Initial Securities that were
tendered by Holders thereof pursuant to the Exchange Offer.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Securities Act of the Exchange
Securities pursuant to a Registration Statement pursuant to which the Company offers the Holders of
all outstanding Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Securities in an aggregate
principal amount equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating to the Exchange
Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose to sell the Initial
Securities to certain “qualified institutional buyers,” as such term is defined in Rule 144A under
the Securities Act and to certain non-U.S. persons pursuant to Regulation S under the Securities
Act.
Exchange Securities: The 10.5% Senior Notes due 2016, of the same series under the Indenture
as the Initial Securities, to be issued to Holders in exchange for Transfer Restricted Securities
pursuant to this Agreement.
FINRA: The Financial Industry Regulatory Authority, Inc.
Guarantees: As defined in the preamble hereto.
Guarantors: As defined in the preamble hereto.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of December 1, 2010, by and among the Company, the
Guarantors and Xxxxx Fargo Bank, National Association, as trustee (the “Trustee”), pursuant to
which the Securities are to be issued, as such Indenture is amended or supplemented from time to
time in accordance with the terms thereof.
Initial Notes: As defined in the preamble hereto.
Initial Placement: The issuance and sale by the Company of the Initial Securities to the
Initial Purchasers pursuant to the Purchase Agreement.
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Initial Purchasers: As defined in the preamble hereto.
Initial Securities: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Securities.
Person: An individual, partnership, corporation, limited liability company, trust or
unincorporated organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement, as amended or supplemented
by any prospectus supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company relating to (a) an offering
of Exchange Securities pursuant to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all exhibits and
material incorporated by reference therein.
Securities: The Initial Securities and the Exchange Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4(a) hereof.
Shelf Registration Statement: As defined in Section 4(a) hereof.
Transfer Restricted Securities: Each Initial Security, until the earliest to occur of (a) the
date on which such Initial Security is exchanged in the Exchange Offer for an Exchange Security
entitled to be resold to the public by the Holder thereof without complying with the prospectus
delivery requirements of the Securities Act, (b) the date on which such Initial Security has been
effectively registered under the Securities Act and disposed of in accordance with a Shelf
Registration Statement and (c) the date on which such Initial Security is distributed to the public
by a Broker-Dealer pursuant to the “Plan of Distribution” contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein).
Trust Indenture Act: The Trust Indenture Act of 1939, as amended.
Underwritten Registration or Underwritten Offering: A registration in which securities of the
Company are sold to an underwriter for reoffering to the public.
SECTION 2. Securities Subject to this Agreement.
(a) Transfer Restricted Securities. The securities entitled to the benefits of this Agreement
are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “Holder”) whenever such Person owns Transfer Restricted Securities.
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SECTION 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a)(i) hereof have been complied with), each of
the Company and the Guarantors shall use its commercially reasonable efforts to (i) cause a
Registration Statement under the Securities Act relating to the Exchange Securities and the
Exchange Offer to become effective in accordance with the requirements of Section 3(b) hereof, (ii)
in connection with the foregoing, (A) file all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to become effective,
(B) file, if applicable, a post-effective amendment to such Registration Statement pursuant to Rule
430A under the Securities Act and (C) cause all necessary filings in connection with the
registration and qualification of the Exchange Securities to be made under the state securities or
blue sky laws of such jurisdictions as are necessary to permit Consummation of the Exchange Offer,
provided, however, that neither the Company nor the Guarantors shall be required to
(i) qualify generally to do business in any jurisdiction where it is not then so qualified, other
than as to matters and transactions relating to the Registration Statement, (ii) take any action
that would subject it to general service of process in any jurisdiction where it is not then so
subject, other than as to matters and transactions relating to the Registration Statement, or (iii)
subject itself to taxation in excess of a nominal dollar amount in any jurisdiction where it is not
then so subject, other than as to matters and transactions relating to the Registration Statement,
and (iv) upon the effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate form permitting registration of
the Exchange Securities to be offered in exchange for the Transfer Restricted Securities and to
permit resales of Initial Securities held by Broker-Dealers as contemplated by Section 3(c) hereof.
(b) The Company and the Guarantors shall use their commercially reasonable efforts to cause
the Exchange Offer Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under applicable federal and
state securities laws to Consummate the Exchange Offer; provided, however, that in no event shall
such period be less than 30 days after the date notice of the Exchange Offer is mailed to the
Holders. The Company shall cause the Exchange Offer to comply with all applicable federal and
state securities laws. No securities other than the Exchange Securities shall be included in the
Exchange Offer Registration Statement. The Company and the Guarantors shall use their respective
commercially reasonable efforts to cause the Exchange Offer to be Consummated not later than 365
days after the Closing Date (or if such 365th day is not a Business Day, the next succeeding
Business Day).
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(c) The Company shall indicate in a “Plan of Distribution” section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any Broker-Dealer who holds
Initial Securities that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities (other than Transfer Restricted Securities acquired directly from the Company), may exchange such Initial
Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be deemed to be an
“underwriter” within the meaning of the Securities Act and must, therefore, deliver a prospectus
meeting the requirements of the Securities Act in connection with any resales of the Exchange
Securities received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the Prospectus contained in
the Exchange Offer Registration Statement. Such “Plan of Distribution” section shall also contain
all other information with respect to such resales by Broker-Dealers that the Commission may
require in order to permit such resales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Initial Securities held by any such
Broker-Dealer except to the extent required by the Commission as a result of a change in policy
after the date of this Agreement.
Each of the Company and the Guarantors shall use its commercially reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) hereof to the extent necessary to ensure that it is
available for resales of Initial Securities acquired by Broker-Dealers for their own accounts as a
result of market-making activities or other trading activities, and to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the policies, rules and regulations of
the Commission as announced from time to time, for a period ending on the earlier of (i) 180 days
from the date on which the Exchange Offer Registration Statement is declared effective and (ii) the
date on which a Broker-Dealer is no longer required to deliver a prospectus in connection with
market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of such Prospectus to
Broker-Dealers promptly upon request at any time during such 180-day (or shorter as provided in the
foregoing sentence) period in order to facilitate such resales.
SECTION 4. Shelf Registration.
(a) Shelf Registration. If (i) the Company and the Guarantors are not required to file an
Exchange Offer Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by applicable law or Commission policy (after the procedures set forth in
Section 6(a)(i) hereof have been complied with), (ii) for any reason the Exchange Offer is not
Consummated within 365 days after the Closing Date (or if such 365th day is not a Business Day, the
next succeeding Business Day), or (iii) with respect to any Holder of Transfer Restricted
Securities (A) such Holder is prohibited by applicable law or Commission policy from participating
in the Exchange Offer, or (B) such Holder may not resell the Exchange Securities acquired by it in
the Exchange Offer to the public without delivering a prospectus and the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for such resales by such
Holder, or (C) such Holder is a Broker-Dealer and holds Initial Securities acquired directly from
the Company or one of its affiliates, then, upon such Holder’s request, the Company and the
Guarantors shall use their commercially reasonable efforts to
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(x) cause to be filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration Statement”) on or prior to the earliest
to occur of, but in no event, prior to the 240th day following the Closing Date (or if
such 240th day is not a Business Day, the next succeeding Business Day) (1) the 60th day
after the date on which the Company determines that it is not required to file the Exchange
Offer Registration Statement (or if such 60th Business Day is not a Business Day, the next
succeeding Business Day), (2) the 60th day after the date on which the Company receives
notice from a Holder of Transfer Restricted Securities as contemplated by clause (iii) above
(or if such 60th day is not a Business Day, the next succeeding Business Day), and (3) the
365th day following the Closing Date (or if such 365th day is not a Business Day, the next
succeeding Business Day) (such earliest date, or if such date is prior to the 240th day
following the Closing Date, then such 240th day (or if such 240th day is not a Business Day,
the next succeeding Business Day), the “Shelf Filing Deadline”), which Shelf Registration
Statement shall provide for resales of all Transfer Restricted Securities the Holders of
which shall have provided the information required pursuant to Section 4(b) hereof; and
(y) cause such Shelf Registration Statement to be declared effective by the Commission
on or before the 125th day after the Shelf Filing Deadline (or if such 125th day is not a
Business Day, the next succeeding Business Day).
(b) Each of the Company and the Guarantors shall use its commercially reasonable efforts to
keep such Shelf Registration Statement continuously effective, supplemented and amended as required
by the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Initial Securities by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that it conforms with the requirements
of this Agreement, the Securities Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of at least two years following the Closing Date.
(c) Provision by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may include any of its Transfer Restricted
Securities in any Shelf Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 Business Days after receipt of a request
therefor, such information as the Company may reasonably request for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included therein. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
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SECTION 5. Additional Interest. If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any of such Registration Statements has not been declared effective by the
Commission on or prior to the date specified for such effectiveness in this Agreement (the
“Effectiveness Target Date”), (iii) the Exchange Offer has not been Consummated within 365 Business
Days after the Closing Date with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose without being
succeeded within thirty (30) days by a post-effective amendment to such Registration Statement
that cures such failure and that is itself immediately declared effective (each such event referred
to in clauses (i) through (iv), a “Registration Default”), the Company hereby agrees that, as
payment for liquidated damages, the interest rate borne by the Transfer Restricted Securities shall
be increased by 0.25% per annum during the 90-day period immediately following the occurrence of
any Registration Default and shall increase by 0.25% per annum at the end of each subsequent 90-day
period during which such Registration Default continues (any such increase, “Additional Interest”),
but in no event shall such increase exceed 1.00% per annum for all such defaults in the aggregate.
Following the cure of all Registration Defaults relating to any particular Transfer Restricted
Securities, the interest rate borne by the relevant Transfer Restricted Securities will be reduced
to the original interest rate borne by such Transfer Restricted Securities; provided, however,
that, if after any such reduction in interest rate, a different Registration Default occurs, the
interest rate borne by the relevant Transfer Restricted Securities shall again be increased
pursuant to the foregoing provisions.
The Company 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 Additional Interest due pursuant to this Section 5 will be payable in cash
semiannually on each June 15 and December 15 (to the holders of record on the June 1 and December 1
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 Transfer
Restricted 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 comprised 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.
All obligations of the Company and the Guarantors set forth in the preceding paragraph that
are outstanding with respect to any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such time as all such obligations with
respect to such security shall have been satisfied in full.
SECTION 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange Offer, the Company
and the Guarantor shall comply with all of the provisions of Section 6(c) hereof, shall use their
commercially reasonable to effect such exchange to permit the sale of Transfer Restricted
Securities being sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there is a question as to
whether the Exchange Offer is permitted by applicable law, each of the Company and the
Guarantors hereby agrees to seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an Exchange Offer for such
Initial Securities. Each of the Company and the Guarantors hereby agrees to pursue the
issuance of such a decision to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission policy. Each of the Company and the Guarantors hereby agrees, however, to (A)
participate in telephonic conferences with the Commission, (B) deliver to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal bases, if any,
upon which such counsel has concluded that such an Exchange Offer should be permitted and
(C) diligently pursue a favorable resolution by the Commission staff of such submission.
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(ii) As a condition to its participation in the Exchange Offer pursuant to the terms of
this Agreement, each Holder of Transfer Restricted Securities will be required to furnish,
prior to the Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) neither such Holder or any other Person receiving Exchange
Securities from such Holder is an “affiliate” (as defined in SEC Rule 405) of the Company,
(B) neither such Holder nor any other Person receiving Exchange Notes from such Holder is
engaging in, intends to engage in or has an arrangement or understanding with any Person to
participate in, a “distribution” (within the meaning of the Securities Act) of the Exchange
Securities to be issued in the Exchange Offer, (C) the Exchange Securities are being
acquired in the ordinary course of business of the Person receiving such Exchange
Securities, whether or not such recipient is Holder itself, (D) such Holder shall otherwise
cooperate in the Company’s preparations for the Exchange Offer and (E) such Holder
acknowledges and agrees that any Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be acquired in the Exchange Offer (1)
could not under Commission policy as in effect on the date of this Agreement rely on the
position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (which may include any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale transaction and
that such a secondary resale transaction should 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 if the resales are of Exchange Securities obtained by such
Holder in exchange for Initial Securities acquired by such Holder directly from the Company.
(b) Shelf Registration Statement. In connection with the Shelf Registration Statement, each
of the Company and the Guarantors shall comply with all the provisions of Section 6(c) hereof and
shall use its commercially reasonable efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto each of the Company and the Guarantors will as
expeditiously as possible prepare and file with the Commission a Registration Statement relating to
the registration on any appropriate form under the Securities Act, which form shall be available
for the sale of the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof. Notwithstanding anything to the contrary in this Agreement, at any
time, the Company may delay the filing of a Shelf Registration Statement or delay or suspend the
effectiveness thereof, for a reasonable period of time, but not in excess of an aggregate of 90 days in any calendar year (a “Shelf Suspension Period”), if the Board of
Directors of the Company determines reasonably and in good faith that the filing of any such Shelf
Registration Statement or the continuing effectiveness thereof would require the disclosure of
non-public material information that, in the reasonable judgment of the Board of Directors of the
Company, would be detrimental to the Company if so disclosed or would otherwise materially
adversely affect a financing, acquisition, disposition, merger or other material transaction.
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(c) General Provisions. In connection with any Registration Statement and any Prospectus
required by this Agreement to permit the sale or resale of Transfer Restricted Securities
(including, without limitation, any Registration Statement and the related Prospectus required to
permit resales of Initial Securities by Broker-Dealers), each of the Company and the Guarantors
shall:
(i) use its commercially reasonable efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements (including, if
required by the Securities Act or any regulation thereunder, financial statements of the
Guarantors for the period specified in Section 3 or 4 hereof, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities during the period required
by this Agreement, the Company shall file promptly an appropriate amendment to such
Registration Statement, in the case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use its commercially reasonable
efforts to cause such amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for their intended purpose(s) as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and post-effective amendments
to the applicable Registration Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in Section 3 or 4 hereof, as
applicable, or such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the Securities Act, and to comply fully with the applicable
provisions of Rules 424 and 430A under the Securities Act in a timely manner; and comply
with the provisions of the Securities Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
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(iii) advise the underwriter(s), if any, and selling Holders promptly and, if requested
by such Persons, to confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional information relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Securities Act or of
the suspension by any state securities commission of the qualification of the Transfer
Restricted Securities for offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, and (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any document incorporated
by reference therein untrue, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the statements therein not
misleading. If at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities or blue sky laws,
each of the Company and the Guarantors shall use its commercially reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each selling Holder
named in any Registration Statement, and each of the underwriter(s), if any, before filing
with the Commission, copies of any Registration Statement or any Prospectus included therein
or any amendments or supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment of such Holders and
underwriter(s) in connection with such sale, if any, for a period of at least five Business
Days, and the Company will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which an Initial Purchaser of Transfer Restricted
Securities covered by such Registration Statement or the underwriter(s), if any, shall
reasonably object in writing within five Business Days after the receipt thereof (such
objection to be deemed timely made upon confirmation of telecopy transmission within such
period). The objection of an Initial Purchaser or underwriter, if any, shall be deemed to
be reasonable if such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or omission;
(v) promptly prior to the filing of any document that is to be incorporated by
reference into a Registration Statement or Prospectus, provide copies of such document to
the Initial Purchasers, each selling Holder named in any Registration Statement, and to the
underwriter(s), if any, upon reasonable prior written request and at the sole expense of the
Company, make the Company’s and the Guarantors’ representatives available for discussion of
such document and other customary due diligence matters during customary business hours and
at their usual place of employment, and include such information in such document prior to
the filing thereof as such selling Holders or underwriter(s), if any, reasonably may
request; provided, however, that if any information is reasonably and in good faith
designated by the Company and the Guarantors in writing as confidential at the time of
delivery of such information, the Initial Purchasers or any such underwriter, attorney,
accountant or other agent requesting or receiving such information shall agree
to be bound by reasonable confidentiality agreements and procedures with respect
thereto;
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(vi) upon written request delivered to the Company, make available during normal
business hours at the offices where normally kept, for inspection by the Initial Purchasers,
the managing underwriter(s), if any, participating in any disposition pursuant to such
Registration Statement and any attorney or accountant retained by such Initial Purchasers or
any of the underwriter(s), each an “Inspector,” all financial and other records, pertinent
corporate documents and properties of each of the Company and the Guarantors as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities and shall cause the Company’s and the Guarantors’ officers, directors and
employees to supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement or any post-effective
amendment thereto subsequent to the filing thereof and prior to its effectiveness and to
participate in meetings with investors to the extent requested by the managing
underwriter(s), if any; provided, however, that each Inspector shall agree
in writing that it will keep such records and information confidential and that it will not
disclose any of the records or information that the Company determines, in good faith, to be
confidential and notifies the Inspectors in writing are confidential, and that such
information will be treated as confidential by it so as not to give rise to disclosure
obligations on the part of the Company under SEC Regulation FD unless (i) the disclosure of
such records or information is necessary to avoid or correct a misstatement or omission in
such Registration Statement or Prospectus, (ii) the release of such records or information
is ordered pursuant to a subpoena or other order from a court or administrative agency of
competent jurisdiction, (iii) disclosure of such information is required by applicable law
(including any disclosure requirements pursuant to federal securities laws in connection
with the filing of such Registration Statement or the use of any Prospectus, (iv) disclosure
of such records or information is necessary or advisable, in the opinion of counsel for any
Inspector, 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 the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (v) the information in such records
or information has been made generally available to the public other than by an Inspector or
an “affiliate” (as defined in Rule 405) thereof; provided, however, that
prior notice shall be provided as soon as practicable to the Company of the potential
disclosure of any information by such Inspector pursuant to clauses (i) or (ii) of this
sentence to permit the Company to obtain a protective order (or waive the provisions of this
paragraph (vi)) and that such Inspector shall take such actions as are reasonably necessary
to protect the confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with, an impairment of or in derogation of the rights
and interests of an Initial Purchaser or managing underwriter, if any;
-11-
(vii) if requested by any selling Holders or the underwriter(s), if any, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included therein, including, without
limitation, information relating to the “Plan of Distribution” of the Transfer
Restricted Securities, information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the purchase price being paid
therefor and any other terms of the offering of the Transfer Restricted Securities to be
sold in such offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified of the matters
to be incorporated in such Prospectus supplement or post-effective amendment;
(viii) use commercially reasonable efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of Securities
covered thereby or the underwriter(s), if any;
(ix) furnish to each Initial Purchaser, each selling Holder and each of the
underwriter(s), if any, without charge, upon request, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment thereto, including
financial statements and schedules, all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s), if any, without
charge, as many copies of the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request; subject to the last
paragraph of this Section 6, each of the Company and the Guarantors hereby consents to the
use of the Prospectus and any amendment or supplement thereto by each of the selling Holders
and each of the underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) enter into such agreements (including an underwriting agreement), and make such
representations and warranties, and take all such other actions in connection therewith in
order to expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement, all to such extent as
may be requested by any Initial Purchaser or by any Holder of Transfer Restricted Securities
or underwriter in connection with any sale or resale pursuant to any Registration Statement
contemplated by this Agreement; and whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration, each of the Company and
the Guarantors shall:
(A) furnish to (i) each Initial Purchaser and/or each selling Holder in a
non-underwritten offering or (ii) each underwriter, in an underwritten offering, in
such substance and scope as they may request and as are customarily made by issuers
to underwriters in primary underwritten offerings, upon the date of the Consummation
of the Exchange Offer or, if applicable, the effectiveness of the Shelf Registration
Statement:
(1) a certificate, dated the date of Consummation of the Exchange Offer
or the date of effectiveness of the Shelf Registration Statement, as the case may be, signed by (y) the President or any Vice
President and (z) a principal financial or accounting officer of each of the
Company and the Guarantors, confirming, as of the date thereof, the matters
set forth in paragraphs (i), (ii) and (iii) of Section 5(e) of the Purchase
Agreement and such other matters as such parties may reasonably request;
-12-
(2) an opinion, dated the date of Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the case
may be, of counsel for the Company and the Guarantors, covering the matters
set forth in Section 5(c) of the Purchase Agreement (including a negative
assurance statement consistent with that included in the opinion delivered
pursuant to Section 5(c) of the Purchase Agreement) and such other matters
as such parties may reasonably request; and
(3) a customary comfort letter, dated the date of effectiveness of the
Shelf Registration Statement, from the Company’s independent accountants, in
the customary form and covering matters of the type customarily requested to
be covered in comfort letters by underwriters in connection with primary
underwritten offerings, and covering or affirming the matters set forth in
the comfort letters delivered pursuant to Section 5(a) of the Purchase
Agreement, without exception;
(B) set forth in full or incorporate by reference in the underwriting
agreement, if any, the indemnification provisions and procedures of Section 8 hereof
with respect to all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be reasonably
requested by such parties to evidence compliance with Section 6(c)(xi)(A) hereof and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company or the Guarantors pursuant to this Section
6(c)(xi), if any.
Notwithstanding the foregoing, the Company may delay entering into any underwriting
agreement during a Shelf Suspension Period.
If at any time the representations and warranties of the Company and the Guarantors
contemplated in Section 6(c)(xi)(A)(1) hereof cease to be true and correct, the Company or
the Guarantors shall so advise the Initial Purchasers and the underwriter(s), if any, and
each selling Holder promptly and, if requested by such Persons, shall confirm such advice in
writing;
(xii) prior to any public offering of Transfer Restricted Securities, cooperate with
the selling Holders, the underwriter(s), if any, and their respective counsel in connection
with the registration and qualification of the Transfer Restricted Securities under the
state securities or blue sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer Restricted
Securities covered by the Shelf Registration Statement; provided, however, that none of the
Company or any of the Guarantors shall be required to register or qualify as a foreign
corporation where it is not then so qualified or to take any action that would subject it to
the service of process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not then so subject;
-13-
(xiii) shall issue, upon the request of any Holder of Initial Securities covered by the
Shelf Registration Statement, Exchange Securities having an aggregate principal amount equal
to the aggregate principal amount of Initial Securities surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Exchange Securities to be
registered in the name of such Holder or in the name of the purchaser(s) of such Securities,
as the case may be; in return, the Initial Securities held by such Holder shall be
surrendered to the Company for cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if any, to facilitate
the timely preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names as the
Holders or the underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such Holders or underwriter(s);
(xv) use its commercially reasonable efforts to cause the Transfer Restricted
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 seller or
sellers thereof or the underwriter(s), if any, to consummate the disposition of such
Transfer Restricted Securities, subject to the proviso contained in Section 6(c)(xii)
hereof;
(xvi) if any fact or event contemplated by Section 6(c)(iii)(D) hereof shall exist or
have occurred, prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements therein
not misleading;
(xvii) provide a CUSIP number for all Securities not later than the effective date of
the Registration Statement covering such Securities and provide the Trustee under the
Indenture with printed certificates for such Securities which are in a form eligible for
deposit with the Depository Trust Company and take all other action necessary to ensure that
all such Securities are eligible for deposit with the Depository Trust Company;
(xviii) cooperate and assist in any filings required to be made with FINRA and in the
performance of any due diligence investigation by any underwriter (including any “qualified
independent underwriter”) that is required to be retained in accordance with the rules and
regulations of the FINRA;
-14-
(xix) otherwise use its commercially reasonable efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its security
holders, as soon as practicable, a consolidated earnings statement meeting the requirements
of Rule 158 (which need not be audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted Securities are sold to underwriters
in a firm commitment or best efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first month of the Company’s first
fiscal quarter commencing after the effective date of the Registration Statement;
(xx) use its commercially reasonable efforts to cause the Indenture to be qualified
under the Trust Indenture Act not later than the effective date of the first Registration
Statement required by this Agreement, and, in connection therewith, cooperate with the
Trustee and the Holders of Securities to effect such changes to the Indenture as may be
required for such Indenture to be so qualified in accordance with the terms of the Trust
Indenture Act; and to execute and use its commercially reasonable efforts to cause the
Trustee to execute, all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xxi) cause all Securities covered by the Registration Statement to be listed on each
securities exchange or automated quotation system on which similar securities issued by the
Company are then listed if requested by the Holders of a majority in aggregate principal
amount of Initial Securities or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each document filed with the
Commission pursuant to the requirements of Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is advised
in writing (the “Advice”) by the Company that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such Holder’s possession,
of the Prospectus covering such Transfer Restricted Securities that was current at the time of
receipt of such notice. In the event the Company shall give any such notice, the time period
regarding the effectiveness of such Registration Statement set forth in Section 3 or 4 hereof, as
applicable, shall be extended by the number of days during the period from and including the date
of the giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including the date when
each selling Holder covered by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or shall have received
the Advice; provided, however, that no such extension shall be taken into account in determining whether Additional Interest is due pursuant to Section 5 hereof
or the amount of such Additional Interest, it being agreed that the Company’s option to suspend use
of a Registration Statement pursuant to this paragraph shall be treated as a Registration Default
for purposes of Section 5 hereof.
-15-
SECTION 7. Registration Expenses.
(a) All expenses incident to the Company’s and the Guarantors’ performance of or compliance
with this Agreement will be borne by the Company and the Guarantors, jointly and severally,
regardless of whether a Registration Statement becomes effective, including, without limitation:
(i) all registration and filing fees and expenses (including filings made by any Initial Purchaser
or Holder with the FINRA (and, if applicable, the fees and expenses of any “qualified independent
underwriter” and its counsel that may be required by the rules and regulations of the FINRA)); (ii)
all fees and expenses of compliance with federal securities and state securities or blue sky laws;
(iii) all expenses of printing (including printing certificates for the Exchange Securities to be
issued in the Exchange Offer and printing of Prospectuses), messenger and delivery services and
telephone; (iv) all fees and disbursements of counsel for the Company, the Guarantors and, subject
to Section 7(b) hereof, the Holders of Transfer Restricted Securities; (v) all application and
filing fees in connection with listing the Exchange Securities on a securities exchange or
automated quotation system pursuant to the requirements thereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by or incident to such
performance). Notwithstanding the foregoing, the Company and the Guarantors shall not pay
underwriting or brokerage discounts or commissions.
Each of the Company and the Guarantors will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and expenses of any
Person, including special experts, retained by the Company or the Guarantors.
(b) In connection with any Registration Statement required by this Agreement (including,
without limitation, the Exchange Offer Registration Statement and the Shelf Registration
Statement), the Company and the Guarantors, jointly and severally, will reimburse the Initial
Purchasers and the Holders of Transfer Restricted Securities being tendered in the Exchange Offer
and/or resold pursuant to the “Plan of Distribution” contained in the Exchange Offer Registration
Statement or registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be Xxxxxx Xxxxxx &
Xxxxxxx llp or such other counsel as may be chosen by the Holders of a majority in
principal amount of the Transfer Restricted Securities for whose benefit such Registration
Statement is being prepared.
-16-
SECTION 8. Indemnification.
(a) The Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless (i) each Holder and (ii) each Person, if any, who controls (within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act) any Holder (any of the Persons referred
to in this clause (ii) being hereinafter referred to as a “controlling person”) and (iii)
the respective officers, directors, partners, employees, representatives and agents of any
Holder or any controlling person (any Person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an “Indemnified Holder”), to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities, judgments, actions and expenses
(including, without limitation, and as incurred, reimbursement of all reasonable legal and other
costs of investigating, preparing, pursuing, settling, compromising, paying or defending against
any claim or action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel to any Indemnified
Holder), joint or several, arising out of or based upon (x) any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement (or any amendment or
supplement thereto), or any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading or (y) any untrue
statement or alleged untrue statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto, if the Company or any Guarantor shall have furnished amendments or
supplements thereto), or any omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, except with respect to clauses (x) or (y)
insofar as such losses, claims, damages, liabilities or expenses are caused by an untrue statement
or omission or alleged untrue statement or omission that is made in reliance upon and in conformity
with information relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in addition to any liability
which the Company or the Guarantors may otherwise have.
In case any action or proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders with respect to
which indemnity may be sought against the Company or the Guarantors, such Indemnified Holder (or
the Indemnified Holder controlled by such controlling person) shall promptly notify the Company and
the Guarantors in writing; provided, however, that the failure to give such notice shall not
relieve any of the Company or the Guarantors of its obligations pursuant to this Agreement, unless
and to the extent such failure to notify results in the forfeiture by the Company or the Guarantors
of substantial rights and defenses. In case any such action is brought against an Indemnified
Holder, and it notifies the Company and the Guarantors of the commencement thereof, the Company and
the Guarantors will be entitled to participate therein and, to the extent that they may wish,
assume the defense thereof, with counsel reasonably satisfactory to such Indemnified Holder;
provided, however, that if (i) the use of counsel chosen by the Company and the
Guarantors to represent the Indemnified Holder would present such counsel with a conflict of
interest, (ii) the defendants in any such action include both the Company and/or the Guarantors and
the Indemnified Holder, and the Company and/or the Guarantors and such Indemnified Holder shall
have reasonably concluded that a conflict may arise between their position and the position of the
Company or any of the Guarantors in conducting the defense of any such action or that there may be
one or more legal defenses available to it that are different from or additional to those available
to the Company and/or Guarantors or the Indemnified Holder, as the case may be, or (iii) the
Company and the Guarantors shall not have employed counsel reasonably satisfactory to the
Indemnified Holder to represent such Indemnified Holder within a reasonable time after receipt by
the Company and the Guarantors of notice of the institution of such action, then, in each such
case, the Company and the Guarantor shall not have the right to direct the defense of such action
on behalf of such Indemnified Holder and such Indemnified
Holder shall have the right to select separate counsel to defend such action on behalf of such
Indemnified Holder. After notice from the Company and the Guarantors to such Indemnified Holder of
their election so to assume the defense thereof and approval by such Indemnified Holder of counsel
appointed to defend such action, the Company and the Guarantors will not be liable to such
Indemnified Holder under this Section 8 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such Indemnified Holder in connection with the
defense thereof, unless the Indemnified Holder shall have employed separate counsel in accordance
with the proviso to the immediately preceding sentence.
-17-
The Company and the Guarantors shall not, in connection with any one such action or proceeding
or separate but substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local counsel) at any time
for such Indemnified Holders, which firm shall be designated by the Holders. The Company and the
Guarantors shall not be liable under this Section 8 for any settlement of any such action or
proceeding effected without their prior written consent. The Company and the Guarantors shall be
liable for any settlement of any such action or proceeding effected with the Company’s and the
Guarantors’ prior written consent, which consent shall not be withheld unreasonably, and each of
the Company and the Guarantors agrees, jointly and severally, to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the prior written consent of the Company and the Guarantors.
The Company and the Guarantors shall not, without the prior written consent of each Indemnified
Holder, settle or compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement, compromise, consent or termination (i) includes an
unconditional release of each Indemnified Holder from all liability arising out of such action,
claim, litigation or proceeding and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of the Indemnified Holder.
(b) Each Holder of Transfer Restricted Securities agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Guarantors and their respective directors, officers of
the Company and the Guarantors who sign a Registration Statement, and any Person controlling
(within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the
Company or any of the Guarantors, and the respective officers, directors, partners, employees,
representatives and agents of each such Person, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only with respect to claims
and actions based on information relating to such Holder furnished in writing by such Holder
expressly for use in any Registration Statement. In case any action or proceeding shall be brought
against the Company, the Guarantors or their respective directors or officers or any such
controlling person in respect of which indemnity may be sought against a Holder of Transfer
Restricted Securities, such Holder shall have the rights and duties given the Company and the
Guarantors, and the Company, the Guarantors, their respective directors and officers and such
controlling person shall have the rights and duties given to each Holder by the preceding
paragraph.
-18-
(c) If the indemnification provided for in this Section 8 is unavailable to an indemnified
party under Section 8(a) or (b) hereof (other than by reason of exceptions provided in those
Sections) in respect of any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one
hand, and the Holders, on the other hand, from the Initial Placement (which in the case of the
Company and the Guarantors shall be deemed to be equal to the total gross proceeds to the Company
and the Guarantors from the Initial Placement), and such Registration Statement, or if such
allocation is not permitted by applicable law, the relative fault of the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative fault of the Company and the Guarantors
on the one hand and of the Indemnified Holder on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by the
Company or any of the Guarantors, on the one hand, or the Indemnified Holders, on the other hand,
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 8(a) hereof, any legal or
other fees or expenses reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Company, the Guarantors and each Holder of Transfer Restricted Securities agree that it
would not be just and equitable if contribution pursuant to this Section 8(c) were determined by
pro rata allocation (even if the Holders were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable considerations referred to
in the immediately preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this
Xxxxxxx 0, xxxx of the Holders (and its related Indemnified Holders) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the total net profit
received by such Holder with respect to the Initial Securities exceeds the amount of any damages
which such Holder has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. The Holders’ obligations to
contribute pursuant to this Section 8(c) are several in proportion to the respective principal
amount of Initial Securities held by each of the Holders hereunder and not joint.
-19-
SECTION 9. Rule 144A. Each of the Company and the Guarantors hereby agrees with each Holder,
for so long as any Transfer Restricted Securities remain outstanding, to make available
to any Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted 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 Transfer Restricted Securities pursuant to Rule 144A under the
Securities Act.
SECTION 10. Participation in Underwritten Registrations. No Holder may participate in any
Underwritten Registration hereunder unless such Holder (a) agrees to sell such Holder’s Transfer
Restricted Securities on the basis provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements and (b) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting agreements, lock-up
letters and other documents required under the terms of such underwriting arrangements.
SECTION 11. Selection of Underwriters. The Holders of Transfer Restricted Securities covered
by the Shelf Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the investment
banker(s) and managing underwriter(s) that will administer such offering will be selected by the
Holders of a majority in aggregate principal amount of the Transfer Restricted Securities included
in such offering; provided, however, that such investment banker(s) and managing underwriter(s)
must be reasonably satisfactory to the Company.
SECTION 12. Miscellaneous.
(a) Remedies. Each of the Company and the Guarantors hereby agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Each of the Company and the Guarantors will not on or after
the date of this Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or otherwise conflicts with
the provisions hereof. Neither the Company nor any of the Guarantors has previously entered into
any agreement granting any registration rights with respect to its securities to any Person that
would conflict with or otherwise liimit the rights greanted pursuant to this Agreement. The rights
granted to the Holders hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company’s or any of the Guarantors’ securities under any
agreement in effect on the date hereof.
(c) Adjustments Affecting the Securities. The Company will not take any action, or permit any
change to occur, with respect to the Securities that would materially and adversely affect the
ability of the Holders to Consummate any Exchange Offer.
-20-
(d) Amendments and Waivers. The provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to or departures from the provisions hereof may not be given
unless the Company has (i) in the case of Sections 5 and 8 hereof and this Section 12(d)(i),
obtained the written consent of Holders of all outstanding Transfer Restricted Securities and (ii)
in the case of all other provisions hereof, obtained the written consent
of Holders of a majority of the outstanding principal amount of Transfer Restricted Securities
(excluding any Transfer Restricted Securities held by the Company or its Affiliates).
Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly the rights of other Holders whose
securities are not being tendered pursuant to such Exchange Offer may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities being tendered or
registered; provided, however, 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 with respect to which such amendment, qualification, supplement, waiver,
consent or departure is to be effective.
(e) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand-delivery, first-class mail (registered or certified, return receipt
requested), telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the Registrar under the
Indenture, with a copy to the Registrar under the Indenture; and
(ii) if to the Company:
American Reprographics Company
0000 X. Xxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
0000 X. Xxxxxxxx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Legal Department
With a copy to:
Xxxxxx & Xxxxxxxx LLP
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile.: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to have been duly given: at the time
delivered by hand, if personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address specified in the Indenture.
-21-
(f) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon
the successors and assigns of each of the parties, including, without limitation, and without the
need for an express assignment, subsequent Holders of Transfer Restricted Securities; provided, however, nothing herein shall be deemed to permit any assignment, transfer or
other disposition of Transfer Restricted Securities in violation of the terms hereof or of the
Purchase Agreement or the Indenture. If any transferee of any Holder shall acquire Transfer
Restricted Securities in any manner, whether by operation of law or otherwise, such Transfer
Restricted Securities shall be held subject to all of the terms of this Agreement, and by taking
and holding such Transfer Restricted Securities such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this Agreement, including
the restrictions on resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such Person shall be entitled to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions contained herein, or
the application thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and understandings between
the parties with respect to such subject matter.
-22-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| AMERICAN REPROGRAPHICS COMPANY |
||||
| By: | /s/ KUMARAKULASINGAM XXXXXXXXXXX | |||
| Name: | Kumarakulasingam Xxxxxxxxxxx | |||
| Title: | President and CEO | |||
[Signature Page to Registration Rights Agreement]
| American Reprographics Company, L.L.C. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| American Reprographics Southeast, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| ARC Acquisition Corporation |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Blue Print Service Company, Inc. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| BPI Repro, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Xxxx Blue Print Company |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
[Signature Page to Registration Rights Agreement]
| ERS Digital, Inc. (f/k/a Engineering Repro-Systems,
Inc.) |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Leet-Melbrook, Inc. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| LICENSING SERVICES INTERNATIONAL, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| MBC Precision Imaging, Inc. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| XxXxx Enterprises, Inc. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Mirror Plus Technologies, Inc. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
-2-
| Olympic Reprographics, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Peninsula Blueprint, Inc. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Planwell, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Reprographics Fort Worth, Inc. (f/k/a Wilco Reprographics, Inc.) |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Reprographics Northwest, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| Xxxxxxx’x, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
-3-
| SubHub, Inc. |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| The Peir Group, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
| The Peir Group International, LLC |
||||
| By: | /s/ XXXXXXXX XXXXXX | |||
| Name: | Xxxxxxxx Xxxxxx | |||
| Title: | Chief Financial Officer | |||
-4-
The foregoing Registration Rights Agreement is hereby confirmed and accepted as of the date
first above written:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Acting on behalf of itself and as the
Representative of the several Initial Purchasers
Acting on behalf of itself and as the
Representative of the several Initial Purchasers
| By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated | ||||
By:
|
/s/ XXXX XXXXXXXX
|
|||
-5-
SCHEDULE A
Guarantors
American Reprographics Company, L.L.C.
American Reprographics Southeast, LLC
ARC Acquisition Corporation
Blue Print Service Company, Inc.
BPI Repro, LLC
Xxxx Blue Print Company
ERS Digital, inc. (f/k/a Engineering Repro-Systems, Inc.)
Leet-Melbrook, Inc.
Licensing Services International, LLC
MBC Precision Imaging, Inc.
XxXxx Enterprises, Inc.
Mirror Plus Technologies, Inc.
Olympic Reprographics, LLC
Peninsula Blueprint, Inc.
Planwell, LLC
Reprographics Fort Worth, Inc. (f/k/a Wilco Reprographics, Inc.)
Reprographics Northwest, LLC
Xxxxxxx’x, LLC
SubHub, Inc.
The Peir Group, LLC
The Peir Group International, LLC
Schedule A-1
