McJunkin Red Man Corporation fully and unconditionally guaranteed as to the payment of principal, premium, if any, and interest by McJunkin Red Man Holding Corporation and the Subsidiary Guarantors party hereto Exchange and Registration Rights Agreement
Exhibit 4.3
EXECUTION COPY
XxXxxxxx Red Man Corporation
9.50% Senior Secured Notes due 2016
fully and unconditionally guaranteed as to the
payment of principal, premium,
if any, and interest by
payment of principal, premium,
if any, and interest by
XxXxxxxx Red Man Holding Corporation
and the Subsidiary Guarantors party hereto
and the Subsidiary Guarantors party hereto
Exchange and Registration Rights Agreement
December 21, 2009
Xxxxxxx, Xxxxx & Co.
Barclays Capital Inc.
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Barclays Capital Inc.
Banc of America Securities LLC
X.X. Xxxxxx Securities Inc.
As representatives of the several Purchasers
named in Schedule I to the Purchase Agreement
c/x Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
XxXxxxxx
Red Man Corporation, a West Virginia corporation (the
“Company”), proposes to issue and sell
to the Purchasers (as defined herein) upon the terms set forth in the Purchase Agreement (as
defined herein) $1,000,000,000 in aggregate principal amount of its 9.50% Senior Secured Notes due
2016, which are fully and unconditionally guaranteed (the “Guarantees”) as to the payment of
principal, premium, interest and special interest, if any, jointly and severally, initially by
XxXxxxxx Red Man Holding Corporation (the “Parent”) (on a senior unsecured basis) and each of the
Subsidiary Guarantors (on a senior secured basis) listed on the signature pages of this Agreement
(each a “Subsidiary Guarantor” and, collectively, the “Subsidiary Guarantors”). As an inducement to
the Purchasers to enter into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company, the Parent and the Subsidiary Guarantors
agree with the Purchasers for the benefit of holders (as defined herein) from time to time of the
Registrable Securities (as defined herein) as follows:
1. Certain Definitions. For purposes of this Exchange and Registration Rights Agreement (this
“Agreement”), the following terms shall have the following respective meanings:
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“Base Interest” shall mean the interest that would otherwise accrue on the Securities under the
terms thereof and the Indenture, without giving effect to the provisions of this Agreement.
The term “broker-dealer” shall mean any broker or dealer registered with the Commission under the
Exchange Act.
“Business Day” shall have the meaning set forth in Rule 13e-4(a)(3) promulgated by the Commission
under the Exchange Act, as the same may be amended or succeeded from time to time.
“Closing Date” shall mean the date on which the Securities are initially issued.
“Commission” shall mean the United States Securities and Exchange Commission, or any other federal
agency at the time administering the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
“XXXXX System” means the XXXXX filing system of the Commission and the rules and regulations
pertaining thereto promulgated by the Commission in Regulation S-T under the Securities Act and the
Exchange Act, in each case as the same may be amended or succeeded from time to time (and without
regard to format).
“Effective Time,” in the case of (i) an Exchange Registration, shall mean the time and date as of
which the Commission declares the Exchange Registration Statement effective or as of which the
Exchange Registration Statement otherwise becomes effective pursuant to the Securities Act, (ii) a
Shelf Registration, shall mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration Statement otherwise becomes
effective pursuant to the Securities Act and (iii) a Market-Making Registration, shall mean the
time and date as of which the Commission declares the Market-Making Registration Statement
effective or as of which the Market-Making Registration Statement otherwise becomes effective
pursuant to the Securities Act.
“Electing Holder” shall mean any holder of Registrable Securities that has returned a completed and
signed Notice and Questionnaire to the Company in accordance with Section 3(d)(ii) or Section
3(d)(iii) and the instructions set forth in the Notice and Questionnaire.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated by the Commission thereunder, as the same may be amended or succeeded from
time to time.
“Exchange Effectiveness Deadline” shall have the meaning assigned thereto in Section 2(a).
“Exchange Filing Deadline” shall have the meaning assigned thereto in Section 2(a).
“Exchange Offer” shall have the meaning assigned thereto in Section 2(a).
“Exchange Registration” shall have the meaning assigned thereto in Section 3(c).
“Exchange Registration Statement” shall have the meaning assigned thereto in Section 2(a).
“Exchange Securities” shall have the meaning assigned thereto in Section 2(a).
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The term “holder” shall mean each of the Purchasers and other persons who acquire Registrable
Securities from time to time (including any successors or assigns), in each case for so long as
such person owns any Registrable Securities.
“Indenture” shall mean the Indenture, dated as of December 21, 2009 among the Company, the Parent,
the Subsidiary Guarantors and U.S. Bank National Association, as trustee, as the same may be
amended from time to time.
“Market Maker” shall mean Xxxxxxx, Xxxxx & Co. and its affiliates (as defined under the rules and
regulations of the Commission).
“Market-Making Conditions” shall have the meaning assigned thereto in Section 2(d).
“Market-Making Prospectus” shall have the meaning assigned thereto in Section 2(d).
“Market-Making Registration” shall have the meaning assigned thereto in Section 2(d).
“Market-Making Registration Statement” shall have the meaning assigned thereto in
Section 2(d).
“Material Adverse Effect” shall have the meaning set forth in Section 5(c).
“Notice and Questionnaire” means a Notice of Registration Statement and Selling Securityholder
Questionnaire substantially in the form of Exhibit A hereto.
The term “person” shall mean a corporation, limited liability company, association, partnership,
organization, business, individual, government or political subdivision thereof or governmental
agency.
“Purchase Agreement” shall mean the Purchase Agreement, dated as of December 16, between the
Purchasers, the Company, the Parent and the Subsidiary Guarantors relating to the Securities.
“Purchasers” shall mean the Purchasers named in Schedule I to the Purchase Agreement.
“Registrable Securities” shall mean the Securities;
provided, however, that a Security shall cease
to be a Registrable Security upon the earliest to occur of the following: (i) in the circumstances
contemplated by Section 2(a), the Security has been exchanged
for an Exchange Security in an
Exchange Offer as contemplated in Section 2(a) (provided that any Exchange Security that, pursuant
to the last two sentences of Section 2(a), is included in a prospectus for use in connection with
resales by broker-dealers shall be deemed to be a Registrable Security with respect to Sections 5,
6 and 9 until resale of such Registrable Security has been effected within the Resale Period); (ii)
in the circumstances contemplated by Section 2(b), a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes effective and such Security has been
sold or otherwise transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration Statement; (iii) the first date on or after
the three year anniversary of the date of the Indenture that such security is eligible for sale
pursuant to Rule 144 under the Securities Act without any volume or manner limitations pursuant
thereto; or (iv) such Security shall cease to be outstanding.
“Registration Default” shall have the meaning assigned thereto in Section 2(c).
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“Registration Default Period” shall have the meaning assigned thereto in Section 2(c).
“Registration Expenses” shall have the meaning assigned thereto in Section 4.
“Resale Period” shall have the meaning assigned thereto in Section 2(a).
“Restricted Holder” shall mean (i) a holder that is an affiliate of the Company within the meaning
of Rule 405, (ii) a holder who acquires Exchange Securities outside the ordinary course of such
holder’s business, (iii) a holder who has arrangements or understandings with any person to
participate in the Exchange Offer for the purpose of distributing Exchange Securities and (iv) a
holder that is a broker-dealer, but only with respect to Exchange Securities received by such
broker-dealer pursuant to an Exchange Offer in exchange for Registrable Securities acquired by the
broker-dealer directly from the Company.
“Rule 144”, “Rule 405”,
“Rule 415”, “Rule 424”,
“Rule 430B” and “Rule 433” shall mean, in each case,
such rule promulgated by the Commission under the Securities Act (or any successor provision), as
the same may be amended or succeeded from time to time.
“Securities” shall mean, collectively, the $1,000,000,000 in aggregate principal amount of the
Company’s 9.50% Senior Secured Notes due 2016 to be issued and sold to the Purchasers, and
securities issued in exchange therefor or in lieu thereof pursuant to the Indenture. Each Security
is entitled to the benefit of the Guarantees provided by the Parent and the Subsidiary Guarantors
in the Indenture and, unless the context otherwise requires, any reference herein to a “Security,”
an “Exchange Security” or a “Registrable Security” shall include a reference to the related
Guarantee.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations
promulgated by the Commission thereunder, as the same may be amended or succeeded from time to
time.
“Shelf Registration” shall have the meaning assigned thereto in Section 2(b).
“Shelf Registration Statement” shall have the meaning assigned thereto in Section 2(b).
“Special Interest” shall have the meaning assigned thereto in Section 2(c).
“Suspension Period” shall have the meaning assigned thereto in Section 2(b).
“Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules and
regulations promulgated by the Commission thereunder, as the same may be amended or succeeded from
time to time.
“Trustee” shall mean US Bank National Association, as trustee under the Indenture, together with
any successors thereto in such capacity.
Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers to a
Section or clause, as the case may be, of this Agreement, and the
words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b) below, the Company, the Parent and the Subsidiary
Guarantors agree to file under the Securities Act, no later than 470 days after the
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Closing Date (the “Exchange Filing Deadline”), a registration statement relating to an offer to
exchange (such registration statement, the “Exchange Registration Statement”, and such offer, the
“Exchange Offer”) any and all of the Securities for a like aggregate principal amount of debt
securities issued by the Company and guaranteed by the Parent and the Subsidiary Guarantors, which
debt securities and guarantees are substantially identical to the Securities and the related
Guarantees, respectively (and are entitled to the benefits of the Indenture), except that they have
been registered pursuant to an effective registration statement under the Securities Act and do not
contain provisions for Special Interest contemplated in Section 2(c) below (such new debt
securities hereinafter called “Exchange Securities”). The Company, the Parent and the Subsidiary
Guarantors agree to use their commercially reasonable efforts to cause the Exchange Registration
Statement to become
effective under the Securities Act no later than 110 days after the Exchange Filing Deadline (the
“Exchange Effectiveness Deadline”). The Exchange Offer will be registered under the Securities Act
on the appropriate form and will comply with all applicable tender offer rules and regulations
under the Exchange Act. Unless the Exchange Offer would not be permitted by applicable law or
Commission policy, the Company further agrees to use their commercially reasonable efforts to (i)
commence the Exchange Offer reasonably promptly following the Effective Time of such Exchange
Registration Statement, (ii) hold the Exchange Offer open for at least 20 Business Days in
accordance with Regulation 14E promulgated by the Commission under the Exchange Act and (iii)
exchange Exchange Securities for all Registrable Securities that have been properly tendered and
not withdrawn promptly following the expiration of the Exchange Offer. The Exchange Offer will be
deemed to have been “completed” only (i) if the debt securities and related guarantees received by
holders other than Restricted Holders in the Exchange Offer for Registrable Securities are, upon
receipt, transferable by each such holder without restriction under the Securities Act and the
Exchange Act and without material restrictions under the blue sky or securities laws of a
substantial majority of the States of the United States of America and (ii) upon the Company having
exchanged, pursuant to the Exchange Offer, Exchange Securities for all Registrable Securities that
have been properly tendered and not withdrawn before the expiration of the Exchange Offer, which
shall be on a date that is at least 20 Business Days following the commencement of the Exchange
Offer. The Company, the Parent and the Subsidiary Guarantors agree (x) to include in the Exchange
Registration Statement a prospectus for use in any resales by any holder of Exchange Securities
that is a broker-dealer and (y) to keep such Exchange Registration Statement effective for a period
(the “Resale Period”) beginning when Exchange Securities are first issued in the Exchange Offer and
ending upon the earlier of the expiration of the
90th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable Securities. With
respect to such Exchange Registration Statement, such holders shall have the benefit of the rights
of indemnification and contribution set forth in Subsections 6(a), (c), (d) and (f).
(b) If
(i) on or prior to the time the Exchange Offer is completed existing law or Commission
interpretations are changed such that the debt securities or the related
guarantees received by holders other than Restricted Holders in the Exchange Offer for Registrable
Securities are not or would not be, upon receipt, transferable by each such holder without
restriction under the Securities Act, (ii) the Effective Time of the Exchange Registration
Statement is not within 110 days following the Exchange Filing Deadline and the Exchange Offer has
not been completed within 30 Business Days of such Effective Time (provided that once an Exchange
Offer has been completed, a Shelf Registration Statement shall no longer be required to be filed or
required to become effective pursuant to clause (ii)) or (iii) any holder of Registrable Securities
notifies the Company prior to the
20th Business Day following the completion of the Exchange Offer
that: (A) it is prohibited by law or
4
Commission policy from participating in the Exchange Offer, (B) it may not resell the Exchange
Securities acquired by it in the Exchange Offer to the public without delivering a prospectus and
the prospectus supplement contained in the Exchange Registration Statement is not appropriate or
available for such resales or (C) it is a broker-dealer and owns Securities acquired directly from
the Company or an affiliate of the Company, then the Company, the Parent and the Subsidiary
Guarantors shall, in lieu of (or, in the case of clause (iii), in addition to) conducting the
Exchange Offer contemplated by Section 2(a), file under the Securities Act no later than 45 days
after the time such obligation to file arises (but no earlier than 470 days after the Closing Date)
(the “Shelf Filing Deadline”), a “shelf” registration statement providing for the registration of,
and the sale on a continuous or
delayed basis by the holders of, all of the Registrable Securities,
pursuant to Rule 415 or any
similar rule that may be adopted by the Commission (such filing, the “Shelf Registration” and such
registration statement, the “Shelf Registration Statement”). The Company, the Parent and the
Subsidiary Guarantors agree to use their commercially reasonable efforts to cause the Shelf
Registration Statement to become or be declared effective no later than 110 days after the Shelf
Filing Deadline (but no earlier than 110 days after the Exchange
Filing Deadline); provided, that
if at any time the Company or Parent is or becomes a “well-known seasoned issuer” (as defined in
Rule 405) and is eligible to file an “automatic shelf registration statement” (as defined in Rule
405) and an automatic shelf registration statement is permissible for the contemplated transaction,
then the Company, the Parent and the Subsidiary Guarantors shall use their commercially reasonable
efforts to file the Shelf Registration Statement in the form of an automatic shelf registration
statement as provided in Rule 405. The Company, the Parent and the Subsidiary Guarantors agree to
use their commercially reasonable efforts to keep such Shelf Registration Statement continuously
effective for a period ending on the earlier of the second anniversary of the Effective Time or
such time as there are no longer any Registrable Securities outstanding. No holder shall be
entitled to be named as a selling securityholder in the Shelf Registration Statement or to use the
prospectus forming a part thereof for resales of Registrable Securities unless such holder is an
Electing Holder. The Company, the Parent and the Subsidiary Guarantors agree, after the Effective
Time of the Shelf Registration Statement and promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to use their commercially reasonable efforts to
enable such holder to use the prospectus forming a part thereof for resales of Registrable
Securities, including, without limitation, any action necessary to identify such holder as a
selling securityholder in the Shelf Registration Statement (whether by post-effective amendment
thereto or by filing a prospectus pursuant to Rules 430B and 424(b) under the Securities Act
identifying such holder), provided, however, that nothing in this sentence shall relieve any such
holder of the obligation to return a completed and signed Notice and Questionnaire to the Company
in accordance with Section 3(d)(iii). Notwithstanding anything to the contrary in this Section
2(b), upon notice to the Electing Holders, the Company may suspend the use or the effectiveness of
such Shelf Registration Statement, or extend the time period in which it is required to file the
Shelf Registration Statement, for one or more periods of up to 90 days in the aggregate, in each
case
in any 12-month period (a “Suspension
Period”) if the Board of Directors of
the Company or Parent determines that there is a valid business purpose for suspension of the
Shelf Registration Statement; provided that the Company shall promptly notify the Electing Holders
when the Shelf Registration Statement may once again be used or is effective.
(c) In the event that (i) the Company, the Parent and the Subsidiary Guarantors have not filed the
Exchange Registration Statement or the Shelf Registration Statement on or before the date on which
such registration statement is required to be filed pursuant to Section 2(a) or Section 2(b),
respectively, or (ii) such Exchange Registration Statement or Shelf
5
Registration Statement has not become effective or been declared effective by the Commission on or
before the date on which such registration statement is required to become or be declared effective
pursuant to Section 2(a) or Section 2(b), respectively, or (iii) the Exchange Offer has not been
completed within 30 Business Days after the Exchange Effectiyeness Deadline (if the Exchange Offer
is then required to be made) or (iv) any Exchange Registration Statement or Shelf Registration
Statement required by Section 2(a) or Section 2(b) is filed and declared effective but shall
thereafter either be withdrawn by the Company or shall become subject to an effective stop order
issued pursuant to Section 8(d) of the Securities Act suspending the effectiveness of such
registration statement (except as specifically permitted herein, including, with respect to any
Shelf Registration Statement, during any applicable Suspension Period in accordance with the last
sentence of Section 2(b)) without being succeeded within five (5) business days by an additional
registration statement filed and declared effective (each such event referred to in clauses (i)
through (iv), a “Registration Default” and each period during which a Registration Default has
occurred and is continuing, a “Registration Default
Period”), then, as a result of such
Registration Default, subject to the provisions of Section 9(b), special interest (“Special
Interest”), in addition to the Base Interest, shall accrue on all Registrable Securities then
outstanding at a per annum rate of 0.25% for the first 90 days of the Registration Default Period,
at a per annum rate of 0.50% for the second 90 days of the Registration Default Period, at a per
annum rate of 0.75% for the third 90 days of the Registration Default Period and at a per annum
rate of 1.0% thereafter for the remaining portion of the Registration Default Period in the
aggregate, regardless of the length of time in which a Registration Default is continuing;
provided, however, that upon the filing of the Exchange Registration Statement or the Shelf
Registration Statement (in the case of clause (i) of this Section 2(c)), upon the effectiveness of
the applicable Exchange Registration Statement or Shelf Registration Statement which had not been
declared effective (in the case of (ii) of this Section 2(c)), upon the exchange of the Exchange
Securities for all Securities tendered (in the case of clause (iii) of this Section 2(c)), or upon
the effectiveness of the applicable Exchange Registration Statement or Shelf Registration Statement
which had ceased to remain effective (in the case of (iv) of this Section 2(c)), Special Interest
on the Registrable Securities in respect of which such events relate as a result of such clause (or
the relevant subclause thereof), as the case may be, shall cease to
accrue. Special Interest shall
accrue and be payable only with respect to a single Registration Default at any given time,
notwithstanding the fact that multiple Registration Defaults may exist at such time. The accrual of
Special Interest shall be the exclusive monetary remedy available to the holders of Registrable
Securities for any Registration Default.
(d) So long as (w) any of the Securities (whether Registrable Securities, Exchange Securities or
otherwise) are outstanding, (x) the Market Maker proposes to make a market in the Securities as
part of its business in the ordinary course, (y) in the reasonable opinion of Xxxxxxx, Xxxxx & Co.,
it would be necessary or appropriate under applicable laws, rules and regulations for the Market
Maker to deliver a prospectus in connection with market-making activities with respect to the
Securities (clauses (w) through (y) collectively, the “Market-Making Conditions”) and (z) the
Market Maker provides initial notice (which need not be in writing) to the Company that the
Market-Making Conditions
are satisfied, the following provisions of this Section 2(d) shall apply for the sole benefit of
the Market Maker (it being understood that only a person for whom the Market-Making Conditions
apply at the applicable time shall be entitled to the use of the Market-Making Registration
Statement and related provisions of this Agreement at any time). The Company, the Parent and the
Subsidiary Guarantors shall use their commercially reasonable efforts to file under the Securities
Act, a “shelf” registration statement (which may be the Exchange Registration Statement or the
Shelf Registration Statement if permitted by the rules and regulations of the
6
Commission) pursuant to Rule 415 under the Securities Act or any similar rule that may be adopted
by the Commission providing for the registration of, and the sale on a continuous or delayed basis
in secondary transactions by the Market Maker of, Securities (such filing, a “Market-Making
Registration”, such registration statement as amended or supplemented from time to time, a
“Market-Making Registration Statement”, and the prospectus contained in such Market-Making
Registration Statement, as amended or supplemented from time to time, a “Market-Making
Prospectus”), The Company, the Parent and the Subsidiary Guarantors agree to use their commercially
reasonable efforts to cause the Market-Making Registration Statement to become or be declared
effective on or prior to (i) the date the Exchange Offer is completed pursuant to Section 2(a)
above or (ii) the date the Shelf Registration becomes or is
declared effective pursuant Section 2(b) above,
and to keep such Market-Making Registration Statement continuously effective for so long as the
Market Maker is required to deliver a prospectus in connection with transactions in the Securities.
In the event that the Market Maker holds Securities at the time an Exchange Offer is to be
conducted under Section 2(a) above, the Company, the Parent and the Subsidiary Guarantors agree
that the Market-Making Registration Statement shall provide for the resale by the Market Maker of
such Securities and shall use its commercially reasonable efforts to keep the Market-Making
Registration Statement continuously effective until such time as Xxxxxxx, Xxxxx & Co. determines in
its reasonable judgment that the Market Maker is no longer required to deliver a prospectus in
connection with the sale of such Securities.
Notwithstanding anything to the contrary in this Section 2(d), the Company may suspend the offering
and sale under the Market-Making Registration Statement for one or more Suspension Periods if the
Board of Directors of the Company determines that (i) such registration would require disclosure of
an event at such time as could reasonably be expected to have a material adverse effect on the
business operations or prospects of the Company, (ii) such registration would require disclosure of
material information relating to a corporate development or (iii) such Market-Making Registration
Statement or amendment or supplement thereto contains an untrue statement of material fact or omits
to state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that the Company shall promptly
notify the Market Maker when the Market-Making Registration Statement may once again be used or is
effective. It is also agreed that each year the Company updates its Market-Maker Registration
Statement, to the extent such registration statement undergoes Commission review, the Company will
need to suspend use of the Market-Making Registration Statement pending completion of such review.
(e) The Company, the Parent and the Subsidiary Guarantors shall use commercially reasonable efforts
to take all actions necessary or advisable to be taken by them to ensure that the transactions
contemplated herein are effected as so contemplated, including all actions necessary or desirable
to register the Guarantees under any Exchange Registration Statement, Shelf Registration Statement
or Market-Making Registration Statement, as applicable.
(f) Any reference herein to a registration statement or prospectus as of any time shall be deemed
to include any document incorporated, or deemed to be incorporated, therein by reference as of such
time; and any reference herein to any post-effective amendment to a registration statement or to
any prospectus supplement as of any time shall be deemed to include any document incorporated, or
deemed to be incorporated, therein by reference as of such time.
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3. Registration
Procedures.
If the Company, the Parent and the Subsidiary Guarantors file a registration statement pursuant to
Section 2(a), Section 2(b) or Section 2(d), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Registration, any Shelf Registration or any
Market-Making Registration, whichever may occur first, the Company shall qualify the Indenture
under the Trust Indenture Act.
(b) In the event that such qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the applicable provisions
of the Indenture.
(c) In connection with the Company’s, the Parent’s and the Subsidiary Guarantors’ obligations with
respect to the registration of Exchange Securities as contemplated by Section 2(a) (the “Exchange
Registration”), if applicable, the Company, the Parent and the Subsidiary Guarantors shall (subject
to the occurrence of one or more Suspension Periods):
(i) prepare and file with the Commission an Exchange Registration Statement on any form which may
be utilized by the Company, the Parent and the Subsidiary Guarantors and which shall permit the
Exchange Offer and resales of Exchange Securities by broker-dealers during the Resale Period to be
effected as contemplated by Section 2(a), and use commercially reasonable efforts to cause such
Exchange Registration Statement to become effective no later than 110 days after the Exchange
Filing Deadline;
(ii) promptly prepare and file with the Commission such amendments and supplements to such Exchange
Registration Statement and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Registration Statement for the periods and purposes
contemplated in Section 2(a) and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Exchange Registration Statement, and
promptly provide each broker-dealer holding Exchange Securities with such number of copies of the
prospectus included therein (as then amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the Trust Indenture Act, as such
broker-dealer reasonably may request prior to the expiration of the Resale Period, for use in
connection with resales of Exchange Securities;
(iii) promptly notify each broker-dealer that has requested or received copies of the prospectus
included in such Exchange Registration Statement, and confirm such advice in writing, (A) when such
Exchange Registration Statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to such Exchange
Registration Statement or any post-effective amendment, when the same has become effective, (B) of
any comments by the Commission and by the blue sky or securities commissioner or regulator of any
state with
respect thereto or any request by the Commission for amendments or supplements to such Exchange
Registration Statement or prospectus or for additional information (provided that such comments
themselves need not be provided to any such broker-dealer), (C) of the issuance by the Commission
of any stop order suspending the effectiveness of such Exchange Registration Statement or the
initiation or threatening of any proceedings for that
8
purpose, (D) if at any time the representations and warranties of the Company contemplated by
Section 5 cease to be true and correct in all material respects, (E) of the receipt by the Company
of any notification with respect to the suspension of the qualification of the Exchange Securities
for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose,
(F) the occurrence of any event that causes the Company to become an “ineligible issuer” as defined
in Rule 405, or (G) if at any time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Registration Statement, prospectus,
prospectus amendment or supplement or post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act and the Trust Indenture Act or
contains an untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the light of the
circumstances then existing;
(iv) in the event that the Company, the Parent and the Subsidiary Guarantors would be required,
pursuant to Section 3(c)(iii)(G), to notify any broker-dealers holding Exchange Securities (except
as otherwise permitted during any Suspension Period), reasonably promptly prepare and furnish to
each such holder a reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of such Exchange Securities during the Resale Period, such
prospectus shall conform in all material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and shall not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(v) use commercially reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of such Exchange Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
(vi) use commercially reasonable efforts to (A) register or qualify the Exchange Securities under
the state securities laws or blue sky laws of such U.S. jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange Offer, to the extent required by such
laws, (B) keep such registrations or qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein in such jurisdictions until the
expiration of the Resale Period, (C) take any and all other actions as may be reasonably necessary
or advisable to enable each broker-dealer holding Exchange Securities to consummate the disposition
thereof in such jurisdictions and (D) obtain the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange Securities by broker-dealers
during the Resale Period; provided, however, that none of the Company, the Parent and the
Subsidiary Guarantors shall be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(c)(vi), (2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such
jurisdiction or (3) make any changes to its certificate of incorporation or by-laws or other
governing documents or any agreement between it and its stockholders;
9
(vii) obtain a CUSIP number for all Exchange Securities, not later than the applicable Effective
Time; and
(viii) comply in all material respects with all applicable rules and regulations of the Commission,
and make generally available to its securityholders no later than eighteen months after the
Effective Time of such Exchange Registration Statement, an “earning statement” of the Company and
its subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of
the Company, Rule 158 thereunder); provided, however, that this requirement shall be deemed
satisfied by the Company’s compliance with Section 4.03 of the Indenture.
(d) In connection with the Company’s, the Parent’s and the Subsidiary Guarantors’ obligations with
respect to the Shelf Registration, if applicable, the Company, the Parent and the Subsidiary
Guarantors shall (subject to the occurrence of one or more Suspension
Periods):
(i) prepare and file with the Commission a Shelf Registration Statement on any form which may be
utilized by the Company and which shall register all of the Registrable Securities for resale by
the holders thereof in accordance with such method or methods of disposition as may be specified by
the holders of Registrable Securities as, from time to time, may be Electing Holders and use
commercially reasonable efforts to cause such Shelf Registration Statement to become effective
within the time periods specified in Section 2(b);
(ii) mail the Notice and Questionnaire to the holders of Registrable Securities (A) not less than
30 days prior to the anticipated Effective Time of the Shelf Registration Statement or (B) in the
case of an “automatic shelf registration statement” (as defined in Rule 405), mail the Notice and
Questionnaire to the holders of Registrable Securities not later than the Effective Time of such
Shelf Registration Statement, and in any such case no holder shall be entitled to be named as a
selling securityholder in the Shelf Registration Statement, and no holder shall be entitled to use
the prospectus forming a part thereof for resales of Registrable Securities at any time, unless and
until such holder has returned a completed and signed Notice and Questionnaire to the Company by
the deadline for responses set forth therein;
(iii) after the Effective Time of the Shelf Registration Statement, upon the request of any holder
of Registrable Securities that is not then an Electing Holder, promptly send a Notice and
Questionnaire to such holder; provided that the Company shall not be required to take any action to
name such holder as a selling securityholder in the Shelf Registration Statement or to enable such
holder to use the prospectus forming a part thereof for resales of Registrable Securities until
such holder has returned a completed and signed Notice and Questionnaire to the Company;
(iv) promptly prepare and file with the Commission such amendments and supplements to such Shelf
Registration Statement and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement
for the period specified in Section 2(b) and as may be required by the applicable rules and
regulations of the Commission and the instructions applicable to the form of such Shelf
Registration Statement, and furnish to the Electing Holders copies of any such supplement or
amendment simultaneously with or prior to its being used or filed with the Commission to the
10
extent such documents are not publicly available on the Commission’s XXXXX System;
(v) comply with the provisions of the Securities Act with respect to the disposition of all of the
Registrable Securities covered by such Shelf Registration Statement in accordance with the intended
methods of disposition by the Electing Holders provided for in such Shelf Registration Statement;
(vi) provide the Electing Holders and not more than one counsel for all the Electing Holders
(designated by the holders of at least a majority in aggregate
principal amount of the Registrable Securities held by the Electing Holders) the opportunity to
participate in the preparation of such Shelf Registration Statement, each prospectus included
therein or filed with the Commission and each amendment or supplement thereto upon customary terms;
(vii) for a reasonable period prior to the filing of such Shelf Registration Statement, and
throughout the period specified in Section 2(b), make available at reasonable times at the
Company’s principal place of business or such other reasonable place for inspection by the persons
referred to in Section 3(d)(vi) who shall certify to the Company that they have a current intention
to sell the Registrable Securities pursuant to the Shelf Registration such financial and other
information and books and records of the Company, and cause the officers, employees, counsel and
independent certified public accountants of the Company to respond to such inquiries, as shall be
reasonably necessary (and in the case of counsel, not violate an attorney-client privilege, in such
counsel’s reasonable belief), in the judgment of the respective counsel referred to in Section
3(d)(vi), to conduct a reasonable investigation within the meaning of Section 11 of the Securities
Act; provided, however, that the foregoing inspection and information gathering on behalf of the
Electing Holders shall be conducted by one counsel designated by the holders of at least a majority
in aggregate principal amount of the Registrable Securities held by the Electing Holders at the
time outstanding and provided further that each such party shall be required to maintain in
confidence and not to disclose to any other person any information or records reasonably designated
by the Company as being confidential and shall execute a customary agreement to such effect if
requested by the Company, until such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such Shelf Registration Statement or otherwise), or (B) such
person shall be required so to disclose such information pursuant to a subpoena or order of any
court or other governmental agency or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) such information is required to be set forth in such
Shelf Registration Statement or the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such prospectus in order that such Shelf
Registration Statement, prospectus, amendment or supplement, as the case may be, complies with
applicable requirements of the federal securities laws and the rules and regulations of the
Commission and does not contain an untrue statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing; provided, further,
that if any such information is Identified by the Company, the Parent or the Subsidiary Guarantors
as being confidential or proprietary, prior to being given such information, each person receiving
such information shall take such actions as are reasonably
11
necessary to protect the confidentiality of such information, including if reasonably necessary,
executing a customary confidentiality agreement
(viii) promptly notify each of the Electing Holders and confirm such advice in writing (which
notice and confirmation may be delivered by email, to the extent an email address is provided by
any such Electing Holder), (A) when such Shelf Registration Statement or the prospectus included
therein has been initially filed, and, with respect to such Shelf Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any comments by the Commission
and by the blue sky or securities commissioner or regulator of any state with respect thereto which
are relevant to the Electing Holders or any request by the Commission for amendments or supplements
to such Shelf Registration Statement or prospectus or for additional information (provided that
such comments themselves need not be provided), (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration Statement or the initiation or
threatening of any proceedings for that purpose, (D) if at any time the representations and
warranties of the Company set forth in Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Company of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (F) the occurrence of any event that causes the
Company to become an “ineligible issuer” as defined in Rule 405, or (G) if at any time when a
prospectus is required to be delivered under the Securities Act, that such Shelf Registration
Statement, prospectus, prospectus amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of the Securities Act and the Trust
Indenture Act or contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing;
(ix) use commercially reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of such Shelf Registration Statement or any post-effective amendment thereto at the
earliest practicable date;
(x) if requested by any Electing Holder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the
applicable rules and regulations of
the Commission and as such Electing Holder specifies should be included therein relating to the
terms of the sale of such Registrable Securities, including information with respect to the
principal amount of Registrable Securities being sold by such Electing Holder, the name and
description of such Electing Holder, the offering price of such Registrable Securities and any
discount, commission or other compensation payable in respect thereof and with respect to any other
terms of the offering of the Registrable Securities to be sold by such Electing Holder; and make
all required filings of such prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus supplement or post-effective
amendment;
(xi) furnish to each Electing Holder and the counsel referred to in Section 3(d)(vi) an executed
copy (or a conformed copy) of such Shelf Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto (in the case of an Electing Holder of
Registrable Securities, upon request) and documents incorporated by reference therein) and such
number of
12
copies of such Shelf Registration Statement (excluding exhibits thereto and documents incorporated
by reference therein unless specifically so requested by such Electing Holder) and of the
prospectus included in such Shelf Registration Statement (including each preliminary prospectus and
any summary prospectus), in conformity in all material respects with the applicable requirements of
the Securities Act; and the Trust Indenture Act to the extent such documents are not available
through the Commission’s XXXXX System, and such other documents, as such Electing Holder may
reasonably request in order to facilitate the offering and disposition of the Registrable
Securities owned by such Electing Holder and to permit such Electing Holder to satisfy the
prospectus delivery requirements of the Securities Act; and subject to Section 3(e), the Company
hereby consents to the use of such prospectus (including such preliminary and summary prospectus)
and any amendment or supplement thereto by each such Electing Holder (subject to any applicable
Suspension Period), in each case in the form most recently provided to such person by the Company,
in connection with the offering and sale of the Registrable Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement or amendment thereto;
(xii) use commercially reasonable efforts to (A) register or qualify the Registrable Securities to
be included in such Shelf Registration Statement under such state securities laws or blue sky laws
of such U.S. jurisdictions as any Electing Holder shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as to permit the continuance
of offers, sales and dealings therein in such jurisdictions during the period the Shelf
Registration Statement is required to remain effective under Section 2(b) and for so long as may be
necessary to enable any such Electing Holder to complete its distribution of Registrable Securities
pursuant to such Shelf Registration Statement, (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing Holder to consummate the disposition
in such jurisdictions of such Registrable Securities and (D) obtain the consent or approval of each
governmental agency or authority, whether federal, state or local, which may be required to effect
the Shelf Registration or the offering or sale in connection therewith or to enable the selling
holder or holders to offer, or to consummate the disposition of, their Registrable Securities;
provided, however, that none of the Company, the Parent and the Subsidiary Guarantors shall be
required for any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein
it would not otherwise be required to qualify but for the requirements of this Section 3(d)(xii),
(2) consent to general service of process in any such jurisdiction or become subject to taxation in
any such jurisdiction or (3) make any changes to its certificate of incorporation or by-laws or
other governing documents or any agreement between it and its stockholders;
(xiii) unless any Registrable Securities shall be in book-entry only form, cooperate with the
Electing Holders to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold, which certificates, if so required by any securities exchange
upon which any Registrable Securities are listed, shall be printed, penned, lithographed, engraved
or otherwise produced by any combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends;
(xiv) obtain a CUSIP number for all Securities that have been registered under the Securities Act,
not later than the applicable Effective Time;
13
(xv) notify in writing each holder of Registrable Securities of any proposal by the Company to
amend or waive any provision of this Agreement pursuant to Section 9(h) and of any amendment or
waiver effected pursuant thereto, each of which notices shall contain the text of the amendment or
waiver proposed or effected, as the case may be; and
(xvi) comply in all material respects with all applicable rules and regulations of the Commission,
and make generally available to its securityholders no later than eighteen months after the
Effective Time of such Shelf Registration Statement an “earning statement” of the Company and its
subsidiaries complying with Section 11(a) of the Securities Act (including, at the option of the
Company, Rule 158 thereunder); provided, however, that this requirement shall be deemed satisfied
by the Company’s compliance with Section 4.03 of the Indenture.
(e) In the event that the Company would be required, pursuant to Section 3(d)(viii)(G), to notify
the Electing Holders, the Company shall reasonably promptly prepare and furnish to each of the
Electing Holders a reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities, such prospectus shall conform in all
material respects to the applicable requirements of the Securities Act and the Trust Indenture Act
and shall not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading in light
of the circumstances then existing (for the avoidance of doubt, any such prospectus filed via the
XXXXX System shall be deemed provided to such persons). Each Electing Holder agrees that upon
receipt of any notice from the Company pursuant to Section 3(d)(viii)(G), such Electing Holder
shall forthwith discontinue the disposition of Registrable Securities pursuant to the Shelf
Registration Statement applicable to such Registrable Securities until such Electing Holder shall
have received copies of such amended or supplemented prospectus, and if so directed by the Company,
such Electing Holder shall deliver to the Company (at the Company’s expense) all copies, other than
permanent file copies, of the prospectus covering such Registrable Securities in such Electing
Xxxxxx’s possession at the time of receipt of such notice.
(f) In the event of a Shelf Registration, in addition to the information required to be provided by
each Electing Holder in its Notice and Questionnaire, the Company may require such Electing Holder
to furnish to the Company such additional information regarding such Electing Holder and such
Electing Holder’s intended method of distribution of Registrable Securities as may be required in
order to comply with the Securities Act. Each such Electing Holder agrees to notify the Company as
promptly as practicable of any inaccuracy or change in information previously furnished by such
Electing Holder to the Company or of the occurrence of any event in either case as a result of
which any prospectus relating to such Shelf Registration contains or would contain an untrue
statement of a material fact regarding such Electing Holder or such Electing Holder’s intended
method of disposition of such Registrable Securities or omits to state any material fact regarding
such Electing Holder or such Electing Holder’s intended method of disposition of such Registrable
Securities required to be stated therein
or necessary to make the statements therein not misleading in the light of the circumstances then
existing, and promptly to furnish to the Company any additional information required to correct and
update any previously furnished information or required so that such prospectus shall not contain,
with respect to such Electing Holder or the disposition of such Registrable Securities, 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 in the light of the circumstances then
existing.
14
(g) Until the expiration of one year after the Closing Date, the Company will not, and will not
permit any of its “affiliates” (as defined in Rule 144) to, resell any of the Securities that have
been reacquired by any of them except pursuant to an effective registration statement, or a valid
exemption from the registration requirements, under the Securities Act.
(h) As a condition to its participation in the Exchange Offer, each holder of Registrable
Securities shall furnish, upon the request of the Company, a written representation to the Company
(which may be contained in the letter of transmittal or “agent’s message” transmitted via The
Depository Trust Company’s Automated Tender Offer Procedures, in either case contemplated by the
Exchange Registration Statement) to the effect that (A) it is not an “affiliate” of the Company, as
defined in Rule 405 of the Securities Act, or if it is such an “affiliate”, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the extent applicable,
(B) it is not engaged in and does not intend to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of the Exchange Securities to be issued in the
Exchange Offer, (C) it is acquiring the Exchange Securities in its ordinary course of business, (D)
if it is a broker-dealer that holds Securities that were acquired for its own account as a result
of market-making activities or other trading activities (other than Securities acquired directly
from the Company or any of its affiliates), it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resales of the Exchange Securities received by it in
the Exchange Offer, (E) if it is a broker-dealer, that it did not purchase the Securities to be
exchanged in the Exchange Offer from the Company or any of its affiliates, and (F) it is not acting
on behalf of any person who could not truthfully and completely make the representations contained
in the foregoing subclauses (A) through (E).
(i) In connection with the Company’s, the Parent’s and the Subsidiary Guarantors’ obligations with
respect to a Market-Making Registration, if applicable, the Company, the Parent and the Subsidiary
Guarantors shall:
(i) prepare and file with the Commission a Market-Making Registration Statement on any form which
may be utilized by the Company and which shall register all of the Securities and the Exchange
Securities for resale by the Market Maker in accordance with such method or methods of disposition
as may be specified by the Market Maker and use commercially reasonable efforts to cause such
Market-Making Registration Statement to become effective within the time periods specified in
Section 2(d);
(ii) promptly prepare and file with the Commission such amendments and supplements to such
Market-Making Registration Statement and the prospectus included therein as may be necessary to
effect and maintain the effectiveness of such Market-Making Registration Statement for the period
specified in Section 2(d) and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Market-Making Registration
Statement, and furnish to the Market Maker copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with the Commission to the extent such
documents are not publicly available on the Commission’s XXXXX System;
(iii) comply with the provisions of the Securities Act with respect to the disposition of all of
the Securities and Exchange Securities covered by such Market-Making Registration Statement in
accordance with the intended methods of disposition by the Market Maker provided for in such
Market-Making Registration Statement;
15
(iv) provide the Market Maker and its counsel the opportunity to participate in the preparation of
such Market-Making Registration Statement, each prospectus included therein or filed with the
Commission and each amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such Market-Making Registration Statement, and
throughout the period specified in Section 2(d), make available at reasonable times at the
Company’s principal place of business or such other reasonable place for inspection by the Market
Maker and its counsel such financial and other information and books and records of the Company,
and cause the officers employees counsel and independent certified public accountants of the
Company to respond to such inquiries, as shall be reasonably necessary (and in the case of counsel,
not violate an attorney-client privilege, in such counsel’s reasonable belief), in the judgment of
the Market Maker’s counsel, to conduct a reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however, that the Market Maker and its counsel shall be required
to maintain in confidence and not to disclose to any other person any information or records
reasonably designated by the Company as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in such Market-Making
Registration Statement or otherwise), or (B) such person shall be required so to disclose such
information pursuant to a subpoena or order of any court or other governmental agency or body
having jurisdiction over the matter (subject to the requirements of such order, and only after such
person shall have given the Company prompt prior written notice of such requirement), or (C) such
information is required to be set forth in such Market-Making Registration Statement or the
prospectus included therein or in an amendment to such Market-Making Registration Statement or an
amendment or supplement to such prospectus in order that such Market-Making Registration Statement,
prospectus, amendment or supplement, as the case may be, complies with applicable requirements of
the federal securities laws and the rules and regulations of the Commission and does not contain an
untrue statement of a material fact or omit to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of the circumstances
then existing; provided, further, that if any such information is identified by the Company, the
Parent or the Subsidiary Guarantors as being confidential or proprietary, prior to being given such
information, each person receiving such information shall take such actions as are reasonably
necessary to protect the confidentiality of such information, including if reasonably necessary,
executing a customary confidentiality agreement;
(vi) promptly notify the
Market Maker and confirm such advice in writing (which notice and
confirmation may be delivered by email, to the extent an email address is provided by the Market
Maker), (A) when such Market-Making Registration Statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective amendment has been filed, and, with
respect to such Market-Making Registration Statement or any post-effective amendment, when the same
has become effective, (B) of any comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto which are relevant to the Market Maker,
or any request by the Commission for amendments or supplements to such Market-Making
Registration Statement or prospectus or for additional information (provided that such comments
themselves need not be provided), (C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Market-Making Registration Statement or the
16
initiation or threatening of any proceedings for that purpose, (D) if at any time the
representations and warranties of the Company set forth in Section 5 cease to be true and correct
in all material respects, (E) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities or the Exchange Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such purpose, (F) the
occurrence of any event that causes the Company to become an “ineligible issuer” as defined in Rule
405, or (G) if at any time when a prospectus is required to be delivered under the Securities Act,
that such Market-Making Registration Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material respects to the applicable requirement of
the Securities Act and the Trust Indenture Act or contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then existing;
(vii) use commercially reasonable efforts to obtain the withdrawal of any order suspending the
effectiveness of such Market-Making Registration Statement or any post-effective amendment thereto
at the earliest practicable date;
(viii) if requested by the Market Maker, promptly incorporate in a prospectus supplement or
post-effective amendment such information as is required by the applicable rules and regulations of
the Commission and as the Market Maker specifies should be included therein relating to the terms
of the sale of such Securities or Exchange Securities by the Market Maker; and make all required
filings of such prospectus supplement or post-effective amendment promptly after notification of
the matters to be incorporated in such prospectus supplement or post-effective amendment;
(ix) furnish to the Market Maker and its counsel an executed copy (or a conformed copy) of such
Market-Making Registration Statement, each such amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein) and such number of
copies of such Market-Making Registration Statement (excluding exhibits thereto and documents
incorporated by reference therein unless specifically so requested by the Market Maker) and of the
prospectus included in such Market Making Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act to the extent such documents are not
available through the Commission’s XXXXX System, and such other documents, as the Market Maker may
reasonably request in order to facilitate the offering and disposition of the Securities and the
Exchange Securities by the Market Maker and to permit the Market Maker to satisfy the prospectus
delivery requirements of the Securities Act; and subject to Section 3(j), the Company, the Parent
and the Subsidiary Guarantor hereby consent to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto by the Market Maker
(subject to any applicable suspension period in accordance with Section 3(j)), in each case in the
form most recently provided to the Market Maker by the Company, in connection with the offering and
sale of the Securities and Exchange Securities covered by the prospectus
(including such preliminary and summary prospectus) or any supplement or amendment thereto;
17
(x) use commercially reasonable efforts to (A) register or qualify the Securities and Exchange
Securities to be included in such Market-Making Registration Statement under such state securities
laws or blue sky laws of such U.S. jurisdictions as the Market Maker shall reasonably request, (B)
keep such registrations or qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions during the period the
Market- Making Registration Statement is required to remain effective under Section 2(d) and for so
long as may be necessary to enable the Market Maker to complete its distribution of Securities and
Exchange Securities pursuant to such Market-Making Registration Statement, (C) take any and all
other actions as may be reasonably necessary or advisable to enable the Market Maker to
consummate the disposition in such jurisdictions of such Securities and Exchange Securities and (D)
obtain the consent or approval of each governmental agency or authority, whether federal, state or
local, which may be required to effect the Market-Making Registration or the offering or sale in
connection therewith or to enable the Market Maker to offer, or to consummate the disposition of,
Securities and Exchange Securities in connection with its market making activities; provided,
however, that none of the Company, the Parent or the Subsidiary Guarantors shall be required for
any such purpose to (1) qualify as a foreign corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of this Section 3(i)(x), (2) consent to
general service of process in any such jurisdiction or become subject to taxation in any such
jurisdiction or (3) make any changes to its certificate of incorporation or by-laws or other
governing documents or any agreement between it and its stockholders;
(xi) use commercially reasonable efforts to furnish or cause to be furnished to the Market Maker
upon its request at reasonable intervals (subject to the proviso below), when the Market-Making
Registration Statement or the Market-Making Prospectus shall be amended or supplemented at any time
when the Market-Making Conditions are satisfied: (1) access to the Company’s officers and financial
and other records; (2) written opinions of counsel for the Company (which may be the General
Counsel of the Company in his sole discretion) covering such customary matters as the Market Maker
may reasonably request and that, to such counsel’s knowledge, no stop order suspending the
effectiveness of the Market-Making Registration Statement has been issued and no proceeding for
that purpose is pending or threatened by the Commission; (3) a letter from the independent
accountants who have certified the financial statements included In the Market-Making Registration
Statement as then amended covering such matters as the Market Maker shall reasonably request and
consistent with customary practice; and (4) certificates of officers of the Company to the effect
that: (A) to the knowledge of such officer, the Market-Making Registration Statement has been
declared effective; (B) in the case of an amendment, to the knowledge of such officer, such
amendment has become effective under the Securities Act as of the date and time specified in such
certificate, if applicable; (C) if required, such amendment or supplement to the Market-Making
Prospectus was filed with the Commission pursuant to the subparagraph of Rule 424(b) under the
Securities Act specified in such certificate on the date specified therein; (D) to the knowledge of
such officers, no stop order suspending the effectiveness of the Market-Making Registration
Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission; (E) such officers have examined the Market-Making
Registration Statement and the Market-Making Prospectus (and, in the case of an amendment or
supplement, such amendment or supplement) and as of the date of such document, the Market-Making
18
Registration Statement and the Market-Making Prospectus, as amended or supplemented,
as applicable, did not include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to make the statements
therein not misleading; and in the case of clauses (2), (3) and (4) above in form and
substance reasonably satisfactory to the Market Maker and as modified to relate to the
Market-Making Registration Statement and the Market-Making Prospectus as then amended or
supplemented; provided, however, that (x) such letters from the independent accountants
shall be required only in connection with amendments or supplements relating to the
inclusion of audited financial statements, beginning with the audited financial statements
for the year ended 2008 and shall be required no more than once in any calendar year and
(y) such opinions of counsel and such officers certificates shall be required no more than
twice in any calendar year;
(xii) unless any Securities or Exchange Securities shall be in book-entry only form,
cooperate with the Market Maker to facilitate the timely preparation and delivery of
certificates representing Securities and Exchange Securities to be sold, which
certificates, if so required by any securities exchange upon which any Securities or
Exchange Securities are listed, shall be printed, penned, lithographed, engraved or
otherwise produced by any combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends; and
(xiii) comply in all material respects with all applicable rules and regulations of
the Commission, and make generally available to its securityholders no later than eighteen
months after the Effective Time of such Market-Making Registration Statement an “earning
statement” of the Company and its subsidiaries complying with Section 11(a) of the
Securities Act (including, at the option of the Company, Rule 158 thereunder); provided,
however, that this requirement shall be deemed satisfied by the Company’s compliance with
Section 4.03 of the Indenture.
(j) In the event that the Company would be required, pursuant to Section 3(i)(vi)(G), to
notify the Market Maker, the Company shall reasonably promptly prepare and furnish to the Market
Maker a reasonable number of copies of a Market-Making prospectus supplemented or amended so that,
as thereafter delivered to purchasers of Securities or Exchange Securities, such prospectus shall
conform in all material respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances then existing. The Market Maker agrees that upon
receipt of any notice from the Company pursuant to Section 3(i)(vi)(G), the Market Maker shall
forthwith discontinue the disposition of Securities and Exchange Securities pursuant to the
Market-Making Registration Statement until the Market Maker shall have received copies of such
amended or supplemented Market-Making Prospectus, and if so directed by the Company, the Market
Maker shall deliver to the Company (at the Company’s expense) all copies, other than permanent file
copies, of the Market-Making Prospectus in the Market-Maker’s possession at the time of receipt of
such notice. Notwithstanding anything to the contrary contained herein, the Company may for valid
business reasons, including without limitation, a potential acquisition, divestiture of assets or
other material corporate transaction, issue a notice that a Market-Making Registration Statement is
no longer effective or the prospectus included therein is no longer usable for offers and sales of
Securities, and may issue any notice suspending use of such Market-Making Registration Statement
required under applicable securities laws to be issued for so long as valid business reasons exist,
and the Company
19
shall not be obligated to amend or supplement such Market-Making Registration Statement or the
prospectus included therein until it reasonably deems appropriate. The Market Maker agrees that
upon receipt of any notice from the Company pursuant to this Section 3(j), it will discontinue use
of the Market-Making Registration Statement until receipt of copies of the supplemented or amended
prospectus relating thereto and the Market Maker is advised by the Company that the use of a
Market-Making Registration Statement may be resumed.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly all expenses incident to
the Company’s performance of or compliance with this Agreement, Including (a) all Commission and
any FINRA registration, filing and review fees and expenses including reasonable fees and
disbursements of a single counsel for the Eligible Holders and a single counsel for the Market
Maker in connection with such registration, filing and review, (b) all fees and expenses in
connection with the qualification of the Registrable Securities, the Securities and the Exchange
Securities, as applicable, for offering and sale under the State securities and blue sky laws
referred to in Section 3(d)(xii) and Section 3(i)(x) and determination of their eligibility for
investment under the laws of such jurisdictions as the Electing Holders or the Market Maker may
designate, including any reasonable fees and disbursements of a single counsel for the Electing
Holders and a single counsel for the Market Maker in connection with such qualification and
determination, (c) all expenses relating to the preparation, printing, production, distribution and
reproduction of each registration statement required to be filed hereunder, each prospectus
included therein or prepared for distribution pursuant hereto, each amendment or supplement to the
foregoing, the expenses of preparing the Securities or Exchange Securities, as applicable, for
delivery and the expenses of printing or producing any selling agreements and blue sky or legal
investment memoranda and all other documents in connection with the offering, sale or delivery of
Securities or Exchange Securities, as applicable, to be disposed of (including certificates
representing the Securities or Exchange Securities, as applicable), (d) messenger, telephone and
delivery expenses relating to the offering, sale or delivery of Securities or Exchange securities,
as applicable, and the preparation of documents referred in clause (c) above, (e) fees and expenses
of the Trustee under the Indenture, any agent of the Trustee and any counsel for the Trustee and of
any collateral agent or custodian, (f) internal expenses (including all salaries and expenses of
the Company’s officers and employees performing legal or accounting duties), (g) reasonable fees,
disbursements and expenses of counsel and independent certified public accountants of the Company,
(h) reasonable fees, disbursements and expenses of (x) one counsel for the Electing Holders
retained in connection with a Shelf Registration, as selected by the Electing Holders of at least a
majority in aggregate principal amount of the Registrable Securities held by Electing Holders
(which counsel shall be reasonably satisfactory to the Company) and (y) one counsel for the Market
Maker retained in connection with a Market-Making Registration, as selected by the Market Maker
(which counsel shall be reasonably satisfactory to the Company), (i) any fees charged by securities
rating services for rating the Registrable Securities, the Securities or the Exchange Securities,
as applicable, and (j) fees, expenses and disbursements of any other persons, including special
experts, retained by the Company in connection with such registration (collectively, the
“Registration Expenses”). To the extent that any Registration Expenses are incurred, assumed or paid
by any holder of Registrable Securities, Securities or Exchange Securities (including the Market
Maker), as applicable, the Company shall reimburse such person for the full amount of the
Registration Expenses so incurred, assumed or paid promptly after receipt of a request therefor.
Notwithstanding the foregoing, the holders of the Registrable Securities being registered or the
Market Maker, as applicable, shall pay all placement or agency fees and commissions and
underwriting discounts and commissions, if any, and transfer taxes, if any, attributable to the
sale of such Registrable Securities, Securities and Exchange
20
Securities, as applicable, and the reasonable fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than the counsel and
experts specifically referred to above.
5. Representations and Warranties.
Each of The Company, the Parent and the Subsidiary Guarantors, jointly and severally,
represents and warrants to, and agrees with, each Purchaser and each of the holders from time to
time of Registrable Securities and the Market Maker that:
(a) Each registration statement covering Registrable Securities, Securities or Exchange
Securities, as applicable, and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(c), Section 3(d) or Section 3(i) and any
further amendments or supplements to any such registration statement or prospectus, when it becomes
effective or is filed with the Commission, as the case may be, will conform in all material
respects to the requirements of the Securities Act and the Trust Indenture Act and will not contain
an untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and at all times subsequent to
the Effective Time when a prospectus would be required to be delivered under the Securities Act,
other than (A) from (I) such time as a notice has been given to holders of Registrable Securities
or to the Market Maker pursuant to Section 3(c)(iii)(G), Section 3(d)(viii)(G) or Section
3(i)(vi)(G) until (ii) such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(c)(iv), Section 3(e) or Section 3(j); or (B) during any applicable Suspension
Period or period of suspension of the Market-Making Registration Statement pursuant to Section
3(j), each such registration statement, and each prospectus (including any summary prospectus)
contained therein or furnished pursuant to Section 3(c), Section 3(d) or Section 3(i), as then
amended or supplemented, will conform in all material respects to the requirements of the
Securities Act and the Trust Indenture Act and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then existing; provided,
however, that this representation and warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished in writing to the Company by a holder
of Registrable Securities or the Market Maker expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred to in Section 5(a),
when they become or became effective or are or were filed with the Commission, as the case may be,
will conform or conformed in all material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and none of such documents (taken together with all other information
in the Shelf Registration Statement or Market-Making Registration Statement, in each case as
amended at the time such document became effective or was filed with the Commission, as the case
may be) will contain or contained an untrue statement of a material fact or will omit or omitted to
state a material fact required to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities or the Market Maker expressly for use
therein.
(c) The compliance by the Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any
21
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is
subject, (ii) result in any violation of the provisions of the certificate of incorporation, as
amended, or the by-laws or other governing documents, as applicable, of the Company, the Parent or
any Subsidiary Guarantor or (iii) result in any violation of any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction over the Company or any
of its subsidiaries or any of their respective properties; except in the case of (i) and (iii)
above, for such conflicts, breaches or defaults as would not reasonably be expected to result in a
material adverse effect on the general affairs, management, financial position stockholders’ equity
or results of operations of the Company and its subsidiaries, taken as a whole (a “Material Adverse
Effect”); and no consent, approval, authorization, order, registration or qualification of or with
any such court or governmental agency or body is required for the consummation by the Company, the
Parent and the Subsidiary Guarantors of the transactions contemplated by this Agreement, except (x)
the registration under the Securities Act of the Registrable Securities, the Securities and the
Exchange Securities, as applicable, and qualification of the Indenture under the Trust Indenture
Act, (y) such consents, approvals, authorizations, registrations or qualifications as may be
required under state securities or blue sky laws in connection with the offering and distribution
of the Registrable Securities, the Securities and the Exchange Securities, as applicable and (z)
such consents, approvals, authorizations, registrations or qualifications that have been obtained
and are in full force and effect as of the date hereof.
(d) This Agreement has been duly authorized, executed and delivered by the Company, the Parent
and the Subsidiary Guarantors.
6.
Indemnification and Contribution.
(a)
Indemnification by the Company, the Parent and the Subsidiary
Guarantors. The Company, the
Parent and the Subsidiary Guarantors, jointly and severally, will indemnify and hold harmless each
of the holders of Registrable Securities included in an Exchange Registration Statement, each of
the Electing Holders as holders of Registrable Securities included in a Shelf Registration
Statement and the Market Maker as holder of Securities or Exchange Securities included in a
Market-Making Registration Statement against any losses, claims, damages or liabilities, joint or
several, to which such holder, such Electing Holder or the Market Maker may become subject under
the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Exchange Registration Statement, any Shelf Registration
Statement or any Market-Making Registration Statement, as the case may be, under which such
Registrable Securities, Securities or Exchange Securities were registered under the Securities Act,
or any preliminary, final or summary prospectus (including, without limitation, any “issuer free
writing prospectus” as defined in Rule 433) contained therein or furnished by the Company to any
such holder, any such Electing Holder or the Market Maker, or any amendment 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 will
reimburse each such holder, each such Electing Holder and the Market Maker for any and all legal or
other expenses reasonably incurred by them in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that none of the Company, the
Parent or any Subsidiary Guarantor shall be liable to any such person in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based upon an untrue
statement
22
or alleged untrue statement or omission or alleged omission made in such registration statement, or
preliminary, final or summary prospectus (including, without limitation, any “issuer free writing
prospectus” as defined in Rule 433), or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such person expressly for use
therein.
(b) Indemnification by the Electing Holders. The Company may require, as a condition to
including any Registrable Securities in any Shelf Registration Statement filed pursuant to Section
2(b), that the Company shall have received an undertaking substantially as provided in this
subsection from each Electing Holder of Registrable Securities included in such Shelf Registration
Statement, severally and not jointly, to (i) indemnify and hold harmless the Company, the Parent,
the Subsidiary Guarantors and all other Electing Holders of Registrable Securities included in such
Shelf Registration Statement, against any losses, claims, damages or liabilities to which the
Company, the Parent, the Subsidiary Guarantors or such other Electing Holders may become subject,
under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration statement, or any preliminary, final or
summary prospectus (including, without limitation, any ‘issuer free writing prospectus” as defined
in Rule 433) contained therein or furnished by the Company to any Electing Holder, or any amendment
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, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Electing Holder expressly for
use therein, and (ii) reimburse the Company, the Parent and the Subsidiary Guarantors for any legal
or other expenses reasonably incurred by the Company, the Parent and the Subsidiary Guarantors in
connection with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that no such Electing Holder shall be required to undertake liability to any
person under this Section 6(b) for any amounts in excess of the dollar amount of the proceeds
received by such Electing Holder from the sale of such Electing Holder’s Registrable Securities
pursuant to such registration.
(c) Indemnification by the Market Maker. The Company may require, as a condition to including any
Securities or Exchange Securities in the Market-Making Registration Statement filed pursuant to
Section 2(d) hereof and to entering into any underwriting agreement with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to it from each underwriter
named in any such underwriting agreement, severally and not jointly, to, and the Market Maker
shall, and hereby agrees to, (i) indemnify and hold harmless the Company, the Parent and the
Subsidiary Guarantors against any losses, claims, damages or liabilities to which the Company, the
Parent or the Subsidiary Guarantors may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon an untrue statement or alleged untrue statement of a material fact contained in
the Market-Making Registration Statement, or any preliminary, final or summary prospectus contained
therein or furnished by the Company to the Market Maker or to any such underwriter, or any
amendment 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, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made in reliance upon and
in conformity with written
23
information furnished to the Company by the Market Maker or such underwriter expressly for use
therein, and (ii) reimburse the Company, the Parent and the Subsidiary Guarantors for any legal or
other expenses reasonably incurred by the Company, the Parent and the Subsidiary Guarantors in
connection with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that, in the case of Securities held by the Market Maker at the time of the
Exchange Offer, the Market Maker shall not be required to undertake liability to any person under
this Section 6(c) for any amounts in excess of the dollar amount of the proceeds received by the
Market Maker from the sale of such Securities by the Market Maker pursuant to the Market-Making
Registration Statement.
(d) Notices of Claims, Etc. Promptly after receipt by an indemnified party under subsection (a),
(b) or (c) above of written notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against an indemnifying party pursuant to the
indemnification provisions of or contemplated by this Section 6, notify such indemnifying party in
writing of the commencement of such action; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified party under the
indemnification provisions of or contemplated by Sections 6(a), (b) or (c) above, except to the
extent it has been materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; but the omission so to notify the indemnifying party shall not relieve it from any
liability which it may have to any indemnified party otherwise than under the indemnification
provisions of or contemplated by Sections 6(a), 6(b) or 6(c). In
case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and, to the extent that
it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who shall not, except with
the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume the defense thereof,
such indemnifying party shall not be liable to such indemnified party under such subsection for any
legal expenses of other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written consent of the indemnified
party, effect the settlement or compromise of, or consent to the entry of any judgment with respect
to, any pending or threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or potential party to
such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional
release of the indemnified party from all liability arising out of such action or claim and (ii)
does not include a statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of any indemnified party.
(e) Contribution. If for any reason the indemnification provisions contemplated by Sections
6(a), 6(b) or 6(c) are unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to
therein, then each Indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of the indemnifying
party and the indemnified party in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other
relevant equitable considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or omission or
24
alleged omission to state a material fact relates to information supplied by such indemnifying
party or by such indemnified party, and the parties’ relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this Section 6(e) 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 this Section 6(e), The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(e) none of the Electing Holders or, in the case of a Market-Making
Registration relating to the sale by the Market Maker of Securities held by it at the time of the
Exchange Offer, the Market Maker shall be required to contribute any amount in excess of the amount
by which the dollar amount of the proceeds received by such holder from the sale of any Registrable
Securities or the Market Maker from the sale of any such Securities or Exchange Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the amount of any damages
which such holder or Market Maker, as applicable, have 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’ and the Market Makers’ obligations in this Section 6(e) to contribute shall be several
in proportion to the principal amount of Registrable Securities registered by them and not joint.
(f) The obligations of the Company, the Parent and the Subsidiary Guarantors under this
Section 6 shall be in addition to any liability which the Company, the Parent and the Subsidiary
Guarantors may otherwise have and shall extend, upon the same terms and conditions, to each
officer, director and partner of each holder, the Market Maker, each Electing Holder and each
person, if any, who controls any of the foregoing within the meaning of the Securities Act; and the
obligations of the holders, the Market Maker and the Electing Holders contemplated by this Section
6 shall be in addition to any liability which the respective holder, Market Maker or Electing
Holder may otherwise have and shall extend, upon the same terms and conditions, to each officer and
director of the Company, the Parent and the Subsidiary Guarantors (including any person who, with
his consent, is named in any registration statement as about to become a director of the Company,
the Parent or any Subsidiary Guarantor) and to each person, if any, who controls the Company within
the meaning of the Securities Act, as well as to each officer and director of the other holders and
to each person, if any, who controls such other holders within the meaning of the Securities Act.
7. Underwritten Offerings.
Each holder of Registrable Securities hereby agrees with the Company and each other such
holder that no holder of Registrable Securities may participate in any underwritten offering
hereunder unless (a) the Company gives its prior written consent to such underwritten offering, (b)
the managing underwriter or underwriters thereof shall be designated by the Company, provided that
such designated managing underwriter or underwriters is or are reasonably acceptable to Electing
Holders holding at least a majority in aggregate principal amount of the Registrable Securities to
be included in such offering, (c) each holder of Registrable Securities participating in such
underwritten offering agrees to sell such holder’s Registrable Securities on the basis provided in
any underwriting arrangements approved by the
25
persons selecting the managing underwriter or underwriters hereunder and (d) each holder of
Registrable Securities participating in such underwritten offering timely completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements. The Company hereby agrees
with each holder of Registrable Securities that, to the extent it consents to an underwritten
offering hereunder, it will negotiate in good faith and execute all indemnities, underwriting
agreements and other documents reasonably required under the terms of such underwriting
arrangements, including using commercially reasonable efforts to procure customary legal opinions
and auditor “comfort” letters.
8. Rule 144.
(a) Facilitation of Sales Pursuant to Rule 144. The Company covenants to the holders of
Registrable Securities that to the extent it shall be required to do so under the Exchange Act, the
Company shall timely file the reports required to be filed by it under the Exchange Act or the
Securities Act (including the reports under Sections 13 and 15(d) of the Exchange Act referred to
in subparagraph (c)(1) of Rule 144), and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from time to time to
enable such holder to sell Registrable Securities without registration under the Securities Act
within the limitations of the exemption provided by Rule 144. Upon the request of any holder of
Registrable Securities in connection with that holder’s sale pursuant to Rule 144, the Company
shall deliver to such holder a written statement as to whether it has complied with such
requirements.
(b) Availability of Rule 144 Not Excuse for Obligations under Section 2. The fact that holders of
Registrable Securities may become eligible to sell such Registrable Securities pursuant to Rule 144
shall not (1) cause such Securities to cease to be Registrable Securities by any means other than
pursuant to the definition of Registrable Securities or (2) excuse the Company’s, the Parent’s and
the Subsidiary Guarantors’ obligations set forth in Section 2 of this Agreement, including without
limitation the obligations in respect of an Exchange Offer, Shelf Registration, Special Interest
and Market-Making Registration.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents, warrants, covenants and agrees that it
has not granted, and shall not grant, registration rights with respect to Registrable Securities,
Exchange Securities or Securities, as applicable, or any other securities which would be
inconsistent with the terms contained in this Agreement. For clarification, nothing herein is
intended to prohibit the Company, Parent and Subsidiary Guarantors from registering any Additional
Notes (as defined in the Indenture) issued on the same registration statement as the Registrable
Securities.
(b) Specific Performance. Subject to the provisions set forth in Section 3(c) hereof, the parties
hereto acknowledge that there would be no adequate remedy at law if the Company fails to perform
any of its obligations hereunder and that the Purchasers and the holders from time to time of the
Registrable Securities and the Market Maker may be irreparably harmed by any such failure, and,
accordingly agree that the Purchasers and such holders and the Market Maker, in addition to any
other remedy to which they may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of the Company under this Agreement in accordance with the
terms and conditions of this Agreement, in any court of the United States or any State thereof
having jurisdiction. Time shall be of the essence in this Agreement.
26
(c) Notices. All notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered by hand,
if delivered personally, by facsimile or by courier, or three days after being deposited in the
mail (registered or certified mail, postage prepaid, return receipt requested) as follows: If to
the Company, to it at Xxxxxxxx Red Man Corporation, 2 Houston Center, 000 Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000, and if to a holder, to the address of such holder set forth in the security
register or other records of the Company, or to such other address as the Company or any such
holder may have furnished to the other in writing in accordance herewith, except that notices of
change of address shall be effective only upon receipt and if to the
Market Maker, to 00 Xxxxx
Xxxxxx Xxx Xxxx, Xxx Xxxx 00000.
(d) Parties in Interest. All the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the parties hereto, the holders from time
to time of the Registrable Securities, the Market Maker and the respective successors and assigns
of the foregoing. In the event that any transferee of any holder of Registrable Securities shall
acquire Registrable Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of any kind, be deemed a
beneficiary hereof for all purposes and such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable Securities such transferee
shall be entitled to receive the benefits of, and be conclusively deemed to have agreed to be bound
by all of the applicable terms and provisions of this Agreements. Notwithstanding the foregoing,
nothing herein shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms hereof or of the Purchase Agreement or the
Indenture. If the Company shall so request, any such successor, assign or transferee shall agree in
writing to acquire and hold the Registrable Securities subject to all of the applicable terms
hereof.
(e) Survival. The respective indemnities, agreements, representations, warranties and each
other provision set forth in this Agreement or made pursuant hereto shall remain in full force and
effect regardless of any investigation (or statement as to the results thereof) made by or on
behalf of any holder of Registrable Securities, the Market Maker, any director, officer or partner
of such holder or the Market Maker, or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Securities pursuant to the Purchase Agreement,
the transfer and registration of Registrable Securities by such holder and the consummation of an
Exchange Offer and the transfer and registration of Securities and Exchange Securities by the
Market Maker.
(f) Governing Law. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
(g) Headings. The descriptive headings of the several Sections and paragraphs of this
Agreement are inserted for convenience only, do not constitute a part of this Agreement and shall
not affect in any way the meaning or interpretation of this Agreement.
(h)
Entire Agreement; Amendments. This Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its subject matter This
Agreement supersedes all prior agreements and understandings between the parties with respect to
its subject matter. This Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company and the holders of at
least a majority in aggregate principal
27
amount of the Registrable Securities at the time outstanding and, with respect to provisions
relating to the Market Maker, the Market Maker; provided that any such amendment or waiver
affecting solely the provisions of this Agreement relating to a Market-Making Registration may be
effected by a written instrument duly executed solely by the Company and the Market Maker. Each
holder of any Registrable Securities at the time or thereafter outstanding shall be bound by any
amendment or waiver effected pursuant to this Section 9(h), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such Registrable Securities or is delivered
to such holder.
(i) Inspection. For so long as this Agreement shall be in effect, this Agreement and a
complete list of the names and addresses of all the record holders of Registrable Securities shall
be made available for inspection and copying on any Business Day by any holder of Registrable
Securities and the Market Maker for proper purposes only (which shall include any purpose related
to the rights of the holders of Registrable Securities under the Securities, the Indenture and this
Agreement) at the offices of the Company at the address thereof set forth in Section 9(c).
(j) Counterparts. This Agreement may be executed by the parties in counterparts, each of which
shall be deemed to be an original, but all such respective counterparts shall together constitute
one and the same instrument.
(k) Severability. If any provision of this Agreement, or the application thereof in any
circumstance, is held to be invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of such provision in every other respect and of the remaining
provisions contained in this Agreement shall not be affected or impaired thereby.
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remainder of this page is intentionally left blank.]
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If the foregoing is in accordance with your understanding, please sign and return to us
counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the Purchasers,
this letter and such acceptance hereof shall constitute a binding agreement between each of the
Purchasers, the Parent, the Subsidiary Guarantors and the Company. It is understood that your
acceptance of this letter on behalf of each of the Purchasers is pursuant to the authority set
forth in a form of Agreement among Purchasers, the form of which shall be submitted to the Company
for examination upon request, but without warranty on your part as to the authority of the signers
thereof.
Very truly yours, XxXxxxxx Red Man Corporation |
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By: | /s/ Xxxxxx Xxxx | |||
Name: | Xxxxxx Xxxx | |||
Title: | President and Chief Executive Officer | |||
XxXxxxxx Red Man Holding Corporation |
||||
By: | /s/ Xxxxxx Xxxx | |||
Name: | Xxxxxx Xxxx | |||
Title: | President, Chief Executive Officer and Chairman | |||
Subsidiary Guarantors: XXXXXXXX RED MAN DEVELOPMENT CORPORATION XXXXXXXX NIGERIA LIMITED XXXXXXXX-PUERTO RICO CORPORATION XXXXXXXX-XXXX AFRICA CORPORATION XXXXXX OIL & GAS COMPANY XXXXXXX REALTY COMPANY GREENBRIER PETROLEUM CORPORATION MIDWAY-TRISTATE CORPORATION MRC MANAGEMENT COMPANY MRM OKLAHOMA MANAGEMENT LLC LBPS HOLDING COMPANY XXXXXXX PIPE & STEEL COMPANY |
||||
By: | /s/ Xxxxxx Xxxx | |||
Name: | Xxxxxx Xxxx | |||
Title: | President and Chief Executive Officer |
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Accepted as of the date hereof: Xxxxxxx, Xxxxx & Co. |
||||
By: | /s/ Xxxxxxx, Xxxxx & Co. | |||
(Xxxxxxx, Xxxxx & Co.) | ||||
Barclays Capital Inc. |
||||
By: | /s/ Xxxxxxxx Xxxxxx | |||
Name: | Xxxxxxxx Xxxxxx | |||
Title: | Director | |||
X.X. Xxxxxx Securities Inc. |
||||
By: | /s/ Xxxxxxxxx X. Xxxxxxx | |||
Name: | Xxxxxxxxx X. Xxxxxxx | |||
Title: | Executive Director | |||
Banc of America Securities LLC |
||||
By: | /s/ Xxxxxxx Xxxxxx | |||
Name: | Xxxxxxx Xxxxxx | |||
Title: | Managing Director | |||
On behalf of each of the Purchasers
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