CROWN EUROPEAN HOLDINGS SA
$725,000,000 10 7/8% Third Priority Senior Secured Notes due 2013
REGISTRATION RIGHTS AGREEMENT
New York, New York
February 26, 2003
Xxxxxxx Xxxxx Xxxxxx Inc.
Deutsche Bank Securities Inc.
As Representatives of the several Initial
Purchasers named in Schedule I hereto
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Crown European Holdings SA, a societe anonyme organized under
the laws of France (the "Company"), proposes, among other things, to issue and
sell to the several initial purchasers named in Schedule I hereto (the "Initial
Purchasers"), for whom you are acting as representatives (the
"Representatives"), $725,000,000 aggregate principal amount of its 10 7/8% Third
Priority Senior Secured Notes due 2013 (the "Notes") upon the terms and
conditions set forth in a purchase agreement dated February 11, 2003 (the
"Purchase Agreement") relating to the initial placement of the Notes (the
"Initial Placement"). The Company's obligations under the Notes will be
unconditionally guaranteed (the "Guarantees") by Crown Holdings, Inc., a
Pennsylvania corporation ("Crown"), and each of Crown's subsidiaries named in
Schedule II to the Purchase Agreement (collectively, the "Guarantors").
References herein to the "Issuers" refer to the Company and the Guarantors.
References herein to the "Securities" refer to the Notes and the Guarantees. To
induce the Initial Purchasers to enter into the Purchase Agreement and to
satisfy a condition of your obligations thereunder, the Issuers hereby agree
with you for your benefit and the benefit of the holders from time to time of
Securities and Exchange Securities (as defined below) (including the Initial
Purchasers) (each a "Holder" and collectively the "Holders") as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following defined terms shall have the
following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, "control" of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise; and the terms "controlling" and "controlled"
shall have meanings correlative to the foregoing.
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"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Company" shall mean Crown European Holdings SA, a societe
anonyme organized under the laws of France, and any successor thereto.
"Conduct Rules" shall have the meaning set forth in Section
4(u) hereof.
"Crown" shall mean Crown Holdings, Inc., a Pennsylvania
corporation, and any successor thereto.
"CT" shall have the meaning set forth in Section 17 hereof.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the one-year
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Issuers on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the
Company guaranteed by the Guarantors identical in all material respects to the
Securities (except that the cash interest and interest rate step-up provisions
and the U.S. transfer restrictions shall be modified or eliminated, as
appropriate) to be issued under the Indenture.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from any Issuer or any
Affiliate of any Issuer) for Exchange Securities.
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Guarantors" shall have the meaning set forth in the preamble
hereto.
"Holder" shall have the meaning set forth in the preamble
hereto.
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"Indenture" shall mean the Indenture relating to the
Securities to be dated as of the date of original issuance of the Notes among
the Company, the Guarantors and Xxxxx Fargo Bank Minnesota, National
Association, as trustee, as amended or supplemented from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Issuers" shall have the meaning set forth in the preamble
hereto.
"Judgment Currency" shall have the meaning set forth in
Section 18 hereof.
"Losses" shall have the meaning set forth in Section 6(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of
the aggregate principal amount of Securities and Exchange Securities registered
under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Notes" shall have the meaning set forth in the preamble
hereto.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other legal
entity.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the Exchange Securities
covered by such Registration Statement, and all amendments and supplements
thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
Exchange Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated by
reference therein.
"Representatives" shall have the meaning set forth in the
preamble hereto.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
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"Shelf Registration Period" shall have the meaning set forth
in Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuers pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indenture.
"underwriter" shall mean any underwriter of Securities or
Exchange Securities in connection with an offering thereof under a Shelf
Registration Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare
and, not later than 90 days following the date of the original issuance of the
Securities (or if such 90th day is not a Business Day, the next succeeding
Business Day), shall file with the Commission the Exchange Offer Registration
Statement with respect to the Registered Exchange Offer. The Issuers shall use
their reasonable best efforts to cause the Exchange Offer Registration Statement
to become effective under the Act within 210 days of the date of the original
issuance of the Securities (or if such 210th day is not a Business Day, the next
succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder is not an Affiliate of any Issuer, acquires the Exchange Securities in
the ordinary course of such Holder's business, has no arrangements with any
Person to participate in the distribution of the Exchange Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) to trade such Exchange Securities from and after
their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Issuers shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of
transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not
less than 30 days after the date notice thereof is
mailed to the Holders (or longer if required by
applicable law);
(iii) use their reasonable best efforts to keep the
Exchange Offer Registration Statement continuously
effective under the Act, supplemented and amended as
required under the Act, to ensure that it is
available for sales of Exchange Securities by
Exchanging Dealers during the Exchange Offer
Registration Period;
(iv) utilize the services of a depositary for the
Registered Exchange Offer with an address in the
Borough of Manhattan in New York City, which may be
the Trustee or an Affiliate of the Trustee;
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(v) permit Holders to withdraw tendered Securities at
any time prior to the close of business, New York
time, on the last Business Day on which the
Registered Exchange Offer is open;
(vi) if requested by the Commission, prior to
effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the
Commission (A) stating that the Issuers are
conducting the Registered Exchange Offer in reliance
on the position of the Commission in Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988) and
Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991); and (B) including a representation that the
Issuers have not entered into any arrangement or
understanding with any Person to distribute the
Exchange Securities to be received in the Registered
Exchange Offer and that, to the best of the Issuers'
information and belief, each Holder participating in
the Registered Exchange Offer is acquiring the
Exchange Securities in the ordinary course of
business and has no arrangement or understanding with
any Person to participate in the distribution of the
Exchange Securities; and
(vii) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Issuers shall:
(i) accept for exchange all Securities validly
tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in
accordance with Section 4(s) hereof all Securities so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Securities a principal
amount of Exchange Securities equal to the principal
amount of the Securities of such Holder so accepted
for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the Exchange Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act if the resales are of Exchange
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from any Issuer or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Issuers that, at the time of the consummation of the Registered
Exchange Offer:
(i) any Exchange Securities received by such Holder
will be acquired in the ordinary course of business;
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(ii) such Holder will have no arrangement or
understanding with any Person to participate in the
distribution of the Securities or the Exchange
Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Issuers shall issue and deliver to such
Initial Purchaser or the Person purchasing Exchange Securities registered under
a Shelf Registration Statement as contemplated by Section 3 hereof from such
Initial Purchaser, in exchange for such Securities, a like principal amount of
Exchange Securities. The Issuers shall use their reasonable best efforts to
cause the same CUSIP and ISIN numbers to be assigned for such Exchange
Securities as for Exchange Securities issued pursuant to the Registered Exchange
Offer.
(g) Interest on each Exchange Security shall accrue from the
last date on which interest was paid on the Security surrendered in exchange
therefor or, if no interest has been paid on such Security, from the date of
such Security's original issue.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is not consummated within 240
days after the date of the original issuance of the Securities; or (iii) prior
to the 20th day following the consummation of the Registered Exchange Offer (x)
any Initial Purchaser so requests with respect to Securities that are not
eligible to be exchanged for Exchange Securities in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange
Offer, (y) any Holder notifies the Company that it is not or was not eligible to
participate in the Registered Exchange Offer or (z) in the case of any Initial
Purchaser that participates in the Registered Exchange Offer or acquires
Exchange Securities pursuant to Section 2(f) hereof, such Initial Purchaser
notifies the Company that it will not or did not receive freely tradeable
Exchange Securities in exchange for Securities constituting any portion of an
unsold allotment (it being understood that (A) the requirement that an Initial
Purchaser deliver a Prospectus containing the information required by Item 507
or 508 of Regulation S-K under the Act in connection with sales of Exchange
Securities acquired in exchange for such Securities shall result in such
Exchange Securities being not "freely tradeable"; and (B) the requirement that
an Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Registered Exchange Offer in exchange for Securities
acquired as a result of market-making activities or other trading activities
shall not result in such Exchange Securities being not "freely tradeable"), the
Issuers shall effect a Shelf Registration in accordance with Section 3(b)
hereof.
(b) (i) The Issuers shall as promptly as practicable (but in
no event more than 60 days after so required or requested pursuant to this
Section 3), file with the Commission, and thereafter shall use their reasonable
best efforts to cause to be declared effective under the Act within 120 days
after so required or requested pursuant to this Section 3, a Shelf Registration
Statement relating to the offer and sale of the Securities or the Exchange
Securities, as applicable, by the Holders thereof from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that no Holder
(other than an Initial Purchaser) shall be entitled to have the Securities held
by it covered by such Shelf Registration Statement unless such Holder agrees in
writing to be bound by all of the provisions of this Agreement applicable to
such Holder; and provided, further, that with respect to Exchange Securities
received by an Initial Purchaser in exchange for Securities constituting any
portion of an unsold allotment, the Issuers
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may, if permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Item 507 or 508 of Regulation S-K, as applicable, in
satisfaction of their obligations under this subsection with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(ii) The Issuers shall use their reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders until the earliest of
(x) the time when all the Securities or Exchange Securities, as applicable,
covered by the Shelf Registration Statement can be sold pursuant to Rule 144
under the Act without any limitations under clauses (c), (e), (f) and (h) of
Rule 144 under the Act, (y) two years from the effective date of the Shelf
Registration Statement (or until one year from the effective date of the Shelf
Registration Statement if the Shelf Registration Statement is filed at the
request of an Initial Purchaser) and (z) the date on which all the Securities or
Exchange Securities, as applicable, covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period"). The Issuers shall be
deemed not to have used their reasonable best efforts to keep the Shelf
Registration Statement effective during the requisite period if any of them
voluntarily takes any action that would reasonably be expected to result in
Holders of Securities or Exchange Securities covered thereby not being able to
offer and sell such Securities or Exchange Securities during that period, unless
(A) such action is required by applicable law; or (B) such action is taken by
such Issuer in good faith and for valid business reasons (not including
avoidance of its obligations hereunder), including the acquisition or
divestiture of assets, so long as the Issuers thereafter comply with the
requirements of Section 4(k) hereof, if applicable.
(iii) The Issuers shall cause the Shelf Registration
Statement and the related Prospectus and any amendment or supplement thereto, as
of the effective date of the Shelf Registration Statement or such amendment or
supplement, (A) to comply in all material respects with the applicable
requirements of the Act and the rules and regulations of the Commission; and (B)
not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
4. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to each of you, not less than five
Business Days prior to the filing thereof with the
Commission, a copy of any Exchange Offer Registration
Statement and any Shelf Registration Statement, and
each amendment thereof and each amendment or
supplement, if any, to the Prospectus included
therein (including all documents incorporated by
reference therein after the initial filing) and shall
use their reasonable best efforts to reflect in each
such document, when so filed with the Commission,
such comments as you reasonably propose;
(ii) in the case of an Exchange Offer Registration
Statement, to the extent permitted by the Act,
include the information set forth in Annex A hereto
on the front cover of the Prospectus included in the
Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer
Registration Statement in a
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section setting forth details of the Exchange Offer,
in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus contained in
the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered
pursuant to the Registered Exchange Offer;
(iii) in the case of an Exchange Offer Registration
Statement, if requested by an Initial Purchaser,
include the information required by Item 507 or 508
of Regulation S-K, as applicable, in the Prospectus
contained in the Exchange Offer Registration
Statement; and
(iv) in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell
Securities or Exchange Securities pursuant to the
Shelf Registration Statement as selling security
holders.
(b) The Issuers shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all
material respects with the Act and the rules and
regulations thereunder; and
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading.
(c) The Issuers shall advise you, the Holders of Securities
or Exchange Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that has
provided in writing to any Issuer a telephone or facsimile number and address
for notices, and, if requested by you or any such Holder or Exchanging Dealer,
shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Issuers shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when
the Registration Statement or any post-effective
amendment thereto has become effective;
(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement
or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the
Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by any Issuer of any notification
with respect to the suspension of the qualification
of the securities included therein for sale in any
jurisdiction or the initiation of any proceeding for
such purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the
Prospectus so that, as of such date, the statements
therein
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are not misleading and do not omit to state a
material fact required to be stated therein or
necessary to make the statements therein (in the case
of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Issuers shall use their reasonable best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the securities therein for sale
in any jurisdiction at the earliest possible time.
(e) The Issuers shall furnish to each Holder of Securities or
Exchange Securities covered by any Shelf Registration Statement, without charge,
at least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including all material incorporated therein by reference,
and, if the Holder so requests in writing, all exhibits thereto (including
exhibits incorporated by reference therein).
(f) The Issuers shall, during the Shelf Registration Period,
deliver to each Holder of Securities or Exchange Securities covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuers consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of securities in connection
with the offering and sale of the securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.
(g) The Issuers shall furnish to each Exchanging Dealer which
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including all
material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Issuers shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other Person required to deliver a
Prospectus during the Exchange Offer Registration Period, without charge, as
many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as any such Person may
reasonably request. The Issuers consent to the use of the Prospectus or any
amendment or supplement thereto by any Initial Purchaser, any Exchanging Dealer
and any such other Person that may be required to deliver a Prospectus following
the Registered Exchange Offer in connection with the offering and sale of the
Exchange Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities or Exchange Securities pursuant to any Registration
Statement, the Issuers shall arrange, if necessary, for the qualification of the
Securities or the Exchange Securities for sale under the laws of such
jurisdictions as any Holder shall reasonably request and will maintain such
qualification in effect so long as required; provided that in no event shall any
Issuer be obligated to qualify to do business in any jurisdiction where it is
not then so qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the Initial Placement, the
Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where it is not then so subject.
(j) The Issuers shall cooperate with the Holders to
facilitate the timely preparation and delivery of certificates representing
Exchange Securities or Securities to be issued or sold pursuant to
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any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Issuers shall promptly prepare a
post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the Securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 hereof and the
Shelf Registration Statement provided for in Section 3(b) hereof shall each be
extended by the number of days from and including the date of the giving of a
notice of suspension pursuant to Section 4(c) hereof to and including the date
when the Initial Purchasers, the Holders and any known Exchanging Dealer shall
have received such amended or supplemented Prospectus pursuant to this Section
4.
(l) Not later than the effective date of any Registration
Statement, the Issuers shall provide CUSIP and ISIN numbers for the Securities
or the Exchange Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates for
such Securities or Exchange Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its security
holders as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions of
Section 11(a) of the Act.
(n) The Issuers shall cause the Indenture to be qualified
under the Trust Indenture Act in a timely manner.
(o) The Company may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as the
Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf Registration
Statement the Securities or Exchange Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the
Issuers shall enter into such and take all other appropriate actions (including
if requested an underwriting agreement in customary form) in order to expedite
or facilitate the registration or the disposition of the Securities or Exchange
Securities, and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if
any, with respect to all parties to be indemnified pursuant to Section 6.
(q) In the case of any Shelf Registration Statement, the
Issuers shall:
(i) make reasonably available for inspection by a
representative for the Holders of Securities or
Exchange Securities to be registered thereunder,
which representative shall be selected by the
Majority Holders, by the underwriters, if any,
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participating in any disposition pursuant to such
Shelf Registration Statement, and by any attorney,
accountant or other agent for the Holders retained by
the Majority Holders or for the underwriters, if any,
all relevant financial and other records, pertinent
corporate documents and properties of each Issuer and
its subsidiaries;
(ii) cause the officers, directors and employees of
each Issuer to supply all relevant information
reasonably requested by the representative for the
Holders, by the underwriters, if any, or by any such
attorney, accountant or agent in connection with any
such Shelf Registration Statement as is customary for
similar due diligence examinations; provided,
however, that any information that is designated in
writing by any Issuer, in good faith, as confidential
at the time of delivery of such information shall be
kept confidential by the Holders, the underwriters,
if any, and any such attorney, accountant or agent,
unless such disclosure is made in connection with a
court proceeding or required by law, or such
information becomes available to the public generally
or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and warranties to the
Holders of Securities or Exchange Securities
registered thereunder and the underwriters, if any,
in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten
offerings and covering matters including, but not
limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Issuers (which
counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling
Holder and the underwriters, if any, covering such
matters as are customarily covered in opinions
requested in underwritten offerings and such other
matters as may be reasonably requested by such
Holders and underwriters;
(v) obtain "cold comfort" letters from the
independent certified public accountants of the
Company (and, if necessary, any other independent
certified public accountants of any Issuer or any
subsidiary of any Issuer or of any business acquired
by any Issuer for which financial statements and
financial data are, or are required to be, included
in the Shelf Registration Statement), addressed to
each selling Holder of securities registered
thereunder and the underwriters, if any, in customary
form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and
the Managing Underwriters, if any, including those to
evidence compliance with Section 4(k) and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the
Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(q) shall be performed at (A) the effectiveness of such Shelf
Registration Statement and each post-effective amendment thereto; and
(B) each closing under any underwriting or similar agreement as and to
the extent required thereunder.
-12-
(r) In the case of any Exchange Offer Registration Statement,
upon the request of any Initial Purchaser, the Issuers shall:
(i) make reasonably available for inspection by the
Initial Purchasers, and any attorney, accountant or
other agent retained by the Initial Purchasers, all
relevant financial and other records, pertinent
corporate documents and properties of the Issuers and
their respective subsidiaries;
(ii) cause the officers, directors and employees of
each Issuer to supply all relevant information
reasonably requested by any Initial Purchaser or any
attorney, accountant or agent retained by the Initial
Purchasers in connection with any such Exchange Offer
Registration Statement as is customary for similar
due diligence examinations; provided, however, that
any information that is designated in writing by any
Issuer, in good faith, as confidential at the time of
delivery of such information shall be kept
confidential by such Initial Purchaser or any such
attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or
required by law, or such information becomes
available to the public generally or through a third
party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the
Initial Purchasers, in form, substance and scope as
are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters
including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the Issuers (which
counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Initial
Purchasers and their counsel, addressed to the
Initial Purchasers, covering such matters as are
customarily covered in opinions requested in
underwritten offerings and such other matters as may
be reasonably requested by the Initial Purchasers or
their counsel;
(v) obtain "cold comfort" letters from the
independent certified public accountants of the
Company (and, if necessary, any other independent
certified public accountants of any Issuer or any
subsidiary of any Issuer or of any business acquired
by any Issuer for which financial statements and
financial data are, or are required to be, included
in the Exchange Offer Registration Statement),
addressed to the Initial Purchasers, in customary
form and covering matters of the type customarily
covered in "cold comfort" letters in connection with
primary underwritten offerings, or if requested by
the Initial Purchasers or their counsel in lieu of a
"cold comfort" letter, an agreed-upon procedures
letter under Statement on Auditing Standards No. 35,
covering matters requested by the Initial Purchasers
or their counsel; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Initial Purchasers or
their counsel, including those to evidence compliance
with Section 4(k) and with conditions customarily
contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi)
of this Section 4(r) shall be performed at the close of the Registered
Exchange Offer and the effective date of any post-effective amendment
to the Exchange Offer Exchange Offer Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the
-13-
Exchange Securities, the Company shall xxxx, or caused to be marked, on the
Securities so exchanged that such Securities are being canceled in exchange for
the Exchange Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
(t) The Issuers will use their reasonable best efforts (i) if
the Securities have been rated prior to the initial sale of such Securities, to
confirm such ratings will apply to the Securities or the Exchange Securities, as
the case may be, covered by a Exchange Offer Registration Statement; or (ii) if
the Securities were not previously rated, to cause the Securities covered by a
Registration Statement to be rated with at least one nationally recognized
statistical rating agency, if so requested by Majority Holders with respect to
the related Registration Statement or by any Managing Underwriters.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or Exchange Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules of the National Association of Securities Dealers, Inc.
(the "Conduct Rules")) thereof, whether as a Holder or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or otherwise,
the Issuers shall assist such Broker-Dealer in complying with the requirements
of such Conduct Rules, including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging
a "qualified independent underwriter" (as defined in
such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards
of due diligence with respect thereto and, if any
portion of the offering contemplated by such
Registration Statement is an underwritten offering or
is made through a placement or sales agent, to
recommend the yield of such Securities or Exchange
Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such
Conduct Rules.
(v) The Issuers shall use their reasonable best
efforts to take all other steps necessary to effect
the registration of the Securities or the Exchange
Securities, as the case may be, covered by a
Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith, and, in the case of any Exchange Offer Registration
Statement, will reimburse the Initial Purchasers for the reasonable fees and
disbursements of counsel acting in connection therewith.
6. Indemnification and Contribution. (a) The Issuers (other
than the Company) jointly and severally agree, and the Company severally agrees,
to indemnify and hold harmless each Holder of Securities or Exchange Securities,
as the case may be, covered by any Registration Statement (including each
Initial Purchaser and each Affiliate thereof and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each person
who controls any such Holder within the meaning of either the Act or the
Exchange Act against any and
-14-
all losses, claims, damages or liabilities, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement as originally filed
or in any amendment thereof, or in any preliminary Prospectus or the Prospectus,
or in any amendment thereof or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Issuers will not be liable in any case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any such Holder specifically for inclusion
therein; provided, further, that with respect to any untrue statement or
omission of material fact made in any preliminary Prospectus, the indemnity
agreement contained in this Section 6 shall not inure to the benefit of any
Holder from whom the Person asserting any such loss, claim, damage or liability
purchased such Securities or Exchange Securities, as the case may be, to the
extent that any such loss, claim, damage or liability of such Holder occurs
under the circumstance where it shall have been determined by a court of
competent jurisdiction by final and nonappealable judgment that (w) the Company
had previously furnished copies of the Prospectus to such Holder, (x) delivery
of the Prospectus was required by the Act to be made to such Person, (y) the
untrue statement or omission of a material fact contained in the preliminary
Prospectus was corrected in the Prospectus and (z) there was not sent or given
to such Person, at or prior to the written confirmation of the sale of such
securities to such Person, a copy of the Prospectus. This indemnity agreement
will be in addition to any liability which the Issuers may otherwise have.
The Issuers (other than the Company) also jointly and
severally agree, and the Company severally agrees, to indemnify or contribute as
provided in Section 6(d) to Losses of each underwriter of Securities or Exchange
Securities, as the case may be, registered under a Shelf Registration Statement,
their directors, officers, employees or agents and each person who controls such
underwriter on substantially the same basis as that of the indemnification of
the Initial Purchasers and the selling Holders provided in this Section 6(a) and
shall, if requested by any Holder, enter into an underwriting agreement
reflecting such agreement, as provided in Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and each Affiliate thereof and, with
respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer) severally and not jointly agrees to indemnify and hold
harmless the Issuers, each of their respective directors, each of their
respective officers who signs such Registration Statement, and each person who
controls any Issuer within the meaning of either the Act or the Exchange Act, to
the same extent as the foregoing indemnity from the Issuers to each such Holder,
but only with reference to written information relating to such Holder furnished
to the Issuers by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying
-15-
party's choice at the indemnifying party's expense to represent the indemnified
party in any action for which indemnification is sought (in which case the
indemnifying party shall not thereafter be responsible for the fees and expenses
of any separate counsel retained by the indemnified party or parties except as
set forth below); provided, however, that such counsel shall be reasonably
satisfactory to the indemnified party. Notwithstanding the indemnifying party's
election to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest; (ii) the actual or potential defendants in, or
targets of, any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action;
or (iv) the indemnifying party shall authorize the indemnified party to employ
separate counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties, settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding. An indemnifying party shall not be liable under this Section
6 to any indemnified party regarding any settlement or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent is consented to by such indemnifying party, which consent shall not be
unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation (other than the Company, who shall have a
several obligation) to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which such
indemnified party may be subject in such proportion as is appropriate to reflect
the relative benefits received by such indemnifying party, on the one hand, and
such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in
no case shall any Initial Purchaser or any subsequent Holder of any Security or
Exchange Security be responsible, in the aggregate, for any amount in excess of
the purchase discount or commission applicable to such Security, or in the case
of an Exchange Security, applicable to the Security that was exchangeable into
such Exchange Security, as set forth on the cover page of the Final Memorandum,
nor shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by
such underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding sentence is unavailable
for any reason, the indemnifying party and the indemnified party shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuers shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum and (y) the total amount of additional interest which the
Issuers were not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses. Benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of the Final
Memorandum, and benefits received by any other Holders shall be deemed to be
equal to the
-16-
value of receiving Securities or Exchange Securities, as applicable, registered
under the Act. Benefits received by any underwriter shall be deemed to be equal
to the total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to,
among other things, whether any untrue or alleged untrue statement of or
omission or alleged omission to state a material fact relates to information
provided by the indemnifying party, on the one hand, or by the indemnified
party, on the other hand, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The parties agree that it would not be just and
equitable if contribution were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls a Holder within the meaning of either the Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who controls any Issuer
within the meaning of either the Act or the Exchange Act, each officer of any
Issuer who shall have signed the Registration Statement and each director of any
Issuer shall have the same rights to contribution as the Issuers, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Holder or the Issuers or any of the officers, directors or controlling Persons
referred to in this Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities
or Exchange Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing Underwriters
shall be selected by the Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Securities or Exchange Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. No Inconsistent Agreements. No Issuer has, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuers have obtained the written
consent of the Majority Holders; provided that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Issuers shall obtain the written consent of each the Initial Purchasers
against which such amendment, qualification, supplement, waiver or consent is to
be effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities or
Exchange Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect
-17-
the rights of other Holders may be given by the Majority Holders, determined on
the basis of Securities or Exchange Securities, as the case may be, being sold
rather than registered under such Registration Statement.
10. Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier or air courier guaranteeing overnight
delivery:
(a) if to a Holder, at the most current address given by such
holder to the Issuers in accordance with the provisions of this Section 10,
which address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to Xxxxxxx Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the respective addresses set
forth in the Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth
in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Issuers by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
11. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and the Exchange Securities.
The Issuers hereby agree to extend the benefits of this Agreement to any Holder
of Securities or the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
12. Counterparts. This Agreement may be in signed
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
13. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Issuers, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or Exchange Securities is required hereunder, Securities or Exchange
Securities, as applicable, held by any Issuers or its Affiliates (other than
subsequent Holders of Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities or Exchange Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
-18-
17. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, each Issuer (i)
acknowledges that such Issuer has, by separate written instrument, irrevocably
designated and appointed CT Corporation System ("CT") (and any successor entity)
as its authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to this Agreement, the Securities or the
Exchange Securities that may be instituted in any federal or state court in the
State of New York or brought under Federal or state securities laws, and
acknowledges that CT has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding and (iii) agrees
that service of process upon CT and written notices of said service to such
Issuer in accordance with Section 10 hereof shall be deemed effective service of
process upon such Issuer in any such suit or proceeding. Each Issuer further
agrees to take any reasonable action, including the execution and filing of any
and all such documents and instruments, as may be necessary to continue such
designation and appointment of CT in full force and effect so long as any of the
Securities shall be outstanding; provided, however, that such Issuer may, by
written notice to the Representatives, designate such additional or alternative
agent for service of process under this Section 17 that (i) maintains an office
located in the Borough of Manhattan, City of New York in the State of New York
and (ii) is either (x) counsel for such Issuer or (y) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of its business. Such written notice shall identify the name of
such agent for process and the address of the office of such agent for process
in the Borough of Manhattan, City of New York, State of New York.
To the extent that any Issuer has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process with respect
to itself or its property, it hereby irrevocably waives such immunity in respect
of its obligations under each of this Agreement, the Securities and the Exchange
Securities. In addition, each Issuer irrevocably waives and agrees not to
assert, by way of motion, as a defense, or otherwise in any such suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of
the above-mentioned courts for any reason whatsoever, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue for such suit
is improper, or that this Agreement, the Securities or the Exchange Securities
or the subject matter hereof or thereof may not be enforced in such courts.
The Issuers and the Initial Purchasers agree that a final
judgment in any such suit, action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section 17 shall affect the right of the
Trustee to serve legal process in any other manner permitted by law or affect
the right of the Trustee to bring any action or proceeding against any Issuer or
its property in the courts of any other jurisdictions.
18. Judgment Currency. The Issuers, jointly and severally,
agree to indemnify and hold harmless each Holder (including each Initial
Purchaser and each Affiliate thereof and, with respect to any Prospectus
delivery as contemplated by Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each person
who controls any such Holder within the meaning of either the Act or the
Exchange Act against any loss incurred by such indemnified party as a result of
any judgment or order being given or made in favor of such indemnified party for
any amount due under this Agreement and such judgment or order being expressed
and paid in a currency (the "Judgment Currency") other than United States dollar
and as a result of any variation as between (i) the rate of exchange at which
the United States dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order and (ii) the spot rate of exchange in The City
of New York at which such indemnified party on the date of payment of such
judgment or order is able to purchase United States dollars with the amount of
the Judgment Currency actually received by such indemnified party. The foregoing
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "spot rate of exchange" shall include
any premiums and costs of exchange payable in connection with the purchase of,
or conversion into, United States dollars.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Issuers and the several Initial Purchasers.
Very truly yours,
Crown European Holdings SA
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Administrateur
GUARANTORS:
United States:
Crown Cork & Seal Company, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Attest:
By /s/ Xxxx X. Xxxxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Executive Vice President and
Chief Financial Officer
Crown Consultants, Inc.
Crown Cork & Seal Technologies Corporation
Crown Beverage Packaging, Inc.
Crown Cork de Puerto Rico, Inc.
Foreign Manufacturers Finance Corporation
Nationwide Recyclers' Inc.
Xxxxxx-AMS (USA), Inc.
Central States Can Co. of Puerto Rico, Inc.
Eyelet, Inc.
Eyelet Specialty Co., Inc.
Crown Financial Management, Inc.
Hocking Valley Leasing Company
Xxxxxx Plastik, Inc.
Crown Overseas Investments Corporation
By /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Cork & Seal Americas, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Cork & Seal Company (USA), Inc.
By /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, CFO and
Treasurer
Crown Cork & Seal Company (PA), Inc.
By /s/ Xxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
Crown Financial Corporation
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President, CFO and
Treasurer
Crown New Delaware Holdings, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK UK Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK Deutschland Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Canada Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
CCK Mexican Investments LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown International Holdings, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Holdings, Inc.
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Holdings (PA), LLC
(formerly Crown Holdings, LLC)
By /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President and Secretary
Crown Cork & Seal Company (DE), LLC
(formerly Crown Cork & Seal Company, LLC)
By /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President and Treasurer
Belgium:
--------
Crown Cork Company Belgium NV
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Canada:
Crown Cork & Seal Canada Inc.
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
889273 Ontario Inc.
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
Xxxxxx-AMS (Canada), Inc.
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
Xxxxxx Plastik Canada, Inc.
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Secretary
France:
-------
Z.P. France
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Societe de Participations CarnaudMetalbox
By /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
Title: President Directeur General
Astra Plastique S.A.S.
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Polyflex S.A.
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
La Francaise de Developpement de la
Boite Boissons
(Sofreb)
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork Company France SA
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Germany:
-------
CarnaudMetalbox Deutschland GmbH
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Crown Xxxxxx GmbH
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxxx Verpackungen
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxxx Verschlusse GmbH
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxxx & Xxxxx Metallverpackungen
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
CarnaudMetalbox Nahrungsmitteldosen
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxx Plastik GmbH
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Raku Rastatt GmbH
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Xxxxxx Engineering GmbH
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Crown Cork & Seal Deutschland Holdings GmbH
(formerly Xxxxxxxxx GmbH)
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Attorney
Mexico:
------
Envases Generales Crown S.A. de C.V.
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Legal Representative
Xxxxxx Plastik de Mexico S.A. de C.V.
By /s/ Gorardo Xxxx G.
------------------------------------
Name: Gorardo Xxxx G.
Title: Legal Representative
Switzerland:
Crown Cork AG Switzerland
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Xxxxxx XX (Switzerland)
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
BMW Xxxxx (Switzerland)
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
United Kingdom:
--------------
Crown UK Holdings Limited
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork Company Limited
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox Overseas Limited
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Cork & Seal Finance PLC
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox PLC
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
United Closures and Plastics PLC
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox Engineering PLC
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Massmould Holdings Limited
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Specialty Packaging (UK) PLC
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
CarnaudMetalbox Group UK Limited
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
Crown Developpement S.N.C.
By /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
Title: Attorney
SCHEDULE I
Initial Purchasers:
-------------------
Xxxxxxx Xxxxx Barney Inc.
Deutsche Bank Securities Inc.
ABN AMRO Incorporated
Xxxxxxxxx & Company, Inc.
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a Broker-Dealer in
connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such Broker-Dealer as a result
of market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business one year after the Expiration Date, they will make this
Prospectus available to any Broker-Dealer for use in connection with any such
resale. See "Plan of Distribution."
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
Plan of Distribution
--------------------
Each Broker-Dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the close of business one
year after the Expiration Date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 200__, all dealers effecting transactions
in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of
Exchange Securities by Brokers-Dealers. Exchange Securities received by
Broker-Dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such Broker-Dealer and/or the purchasers of
any such Exchange Securities. Any Broker-Dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the Act
and any profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of one year after the Expiration Date, the
Issuers will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Issuers have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holder of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Securities (including
any Broker-Dealers) against certain liabilities, including liabilities under the
Act.
If applicable, add information required by Regulation S-K
Items 507 and/or 508.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _________________________________________
Address: _________________________________________
_________________________________________
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Act.
