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Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made and
entered into as of March 17, 1997 between NORTEK, INC., a Delaware corporation
(the "COMPANY"), and Bear, Xxxxxxx & Co. Inc., Xxxxxxxxxxx Xxxxxxx Securities,
Inc. and BT Securities Corporation (collectively, the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement dated as of
March 12, 1997 (the "PURCHASE AGREEMENT"), between the Company and the Initial
Purchasers, which provides for the sale by the Company to the Initial Purchasers
of an aggregate of $175,000,000 aggregate principal amount of the Company's
9 1/4% Senior Notes due 2007 (the "NOTES"). In order to induce the Initial
Purchasers to enter into the Purchase Agreement and to purchase the Notes, the
Company has agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights for the Notes set forth in this
Agreement. The execution and delivery of this Agreement is a condition precedent
to the obligations of the Initial Purchasers under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. DEFINITIONS. As used in this Agreement, the following capitalized
defined terms shall have the following meanings (and, unless otherwise
indicated, capitalized terms used herein without definition shall have the
meanings ascribed to them in the Purchase Agreement):
"ACT" shall mean the Securities Act of 1933, as amended.
"AGREEMENT" shall have the meaning set forth in the preamble to this
Agreement.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 3(t)
hereof.
"CLOSING DATE" shall mean the Closing Date as defined in the Purchase
Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission, or
such other federal agency administering the Act or the Exchange Act.
"COMPANY" shall have the meaning set forth in the preamble to this
Agreement, and shall also include the Company's successors.
"DEPOSITORY" shall mean The Depository Trust Company, or any successor
depositary appointed by the Company; PROVIDED, HOWEVER, that such
depositary must have an address in the Borough of Manhattan, The City of
New York.
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"EFFECTIVENESS PERIOD" shall have the meaning set forth in
Section 2(b) hereof.
"EVENT DATE" shall have the meaning set forth in Section 2(e) hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
"EXCHANGE OFFER" shall mean the exchange offer by the Company of
Exchange Notes for Notes pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration under the Act
effected pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean the registration
statement (on Form S-4 or, if applicable, on any other appropriate form)
relating to the Exchange Offer, and all amendments and supplements to such
registration statement. including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"EXCHANGE PERIOD" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE NOTES" shall mean the 9 1/4% Series B Senior Notes due 2007,
to be issued by the Company under the Indenture and containing terms
identical to the Notes (except that (i) interest thereon shall accrue from
the last date on which interest was paid on the Notes or, if no such
interest has been paid, from March 17, 1997, and (ii) the transfer
restrictions thereon shall be eliminated) to be offered to Holders of Notes
in exchange for Notes pursuant to the Exchange Offer.
"HOLDER" shall mean each Initial Purchaser, for so long as it owns any
Registrable Securities, and each of its respective successors, assigns and
direct and indirect transferees who become registered owners of Registrable
Securities under the Indenture.
"INDENTURE" shall mean the Indenture dated as of March 17, 1997 by and
between the Company and Sate Street Bank and Trust Company, as trustee, as
the same may be amended or supplemented from time to time in accordance
with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the preamble
to this Agreement.
"INSPECTORS" shall have the meaning set forth in Section 3(n) hereof.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section 2(e)
hereof.
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"MAJORITY HOLDERS" shall mean the Holders of a majority of the
aggregate principal amount of outstanding (as determined under the
Indenture) Registrable Securities.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"NOTES" shall have the meaning set forth in the preamble to this
Agreement.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 3(t) hereof.
"PERSON" shall mean any individual, corporation, limited liability
company, general or limited partnership, limited liability partnership,
joint venture, association, joint-stock company, trust, charitable
foundation, unincorporated organization, government or agency or political
subdivision thereof or any other entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section 2(a)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in Section
2(a) hereof.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a
prospectus supplement with respect to the terms of the offering of any
portion of the Registrable Securities covered by a Shelf Registration
Statement, including post-effective amendments, and in each case including
all material incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the preamble
to this Agreement.
"RECORDS" shall have the meaning set forth in Section 3(n) hereof.
"REGISTRABLE SECURITIES" shall mean the Notes and, if issued, the
Private Exchange Notes; PROVIDED, HOWEVER, that Notes or Private Exchange
Notes, as the case may be, shall cease to be Registrable Securities when
(i) a Registration Statement with respect to such Notes or Private Exchange
Notes or the resale thereof shall have been declared effective under the
Act and such Notes or Private Exchange Notes, as the case may be, shall
have been disposed of pursuant to such Registration Statement, (ii) such
Notes or Private Exchange Notes, as the case may be, shall have become
eligible to be sold to the public pursuant to Rule 144(k) (or any similar
provision then in force, but not Rule 144A) under the Act, (iii) such Notes
or Private Exchange Notes, as the case may be, shall have ceased to be
outstanding or (iv) with
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respect to the Notes, such Notes have been exchanged for Exchange Notes
upon consummation of the Exchange Offer.
"REGISTRATION EXPENSES" shall mean any and all expenses incident to
performance of or compliance by the Company with this Agreement,
including, without limitation: (i) Commission, stock exchange or NASD
registration and filing fees, including, if applicable, the fees and
expenses of any "qualified independent underwriter" and its counsel that
is required to be retained by any Holder of Registrable Securities in
accordance with the rules and regulations of the NASD. (ii) fees and
expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with the blue sky qualification
of any of the Exchange Notes or Registrable Securities) and compliance with
the rules of the NASD, (iii) expenses of any Persons in preparing or
assisting in preparing, printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, and in
preparing or assisting in preparing, printing and distributing any
underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with the obligations under
this Agreement, (iv) rating agency fees, (v) fees and disbursements of
counsel for and independent certified public accountants of the Company,
including the expenses of any "cold comfort" letters required by or
incident to such performance and compliance, (vi) fees and expenses of the
Trustee, and any exchange agent or custodian, (vii) fees and expenses
incurred in connection with the listing, if any, of any of the Registrable
Securities on any securities exchange or exchanges, and (viii) the
reasonable fees and expenses of any special experts retained by the Company
in connection with any Registration Statement.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company relating to the Exchange Notes or Registrable Securities pursuant
to the provisions of this Agreement, and all amendments and supplements to
any such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"SHELF REGISTRATION" shall mean a registration effected pursuant to
Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(b) of this
Agreement which covers all of the Registrable Securities, on an appropriate
form under Rule 415 under the Act, or any similar rule that may be adopted
by the Commission, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
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"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRANSFER RESTRICTED SECURITIES" shall mean each Note until (i) the
date on which such Note has been exchanged by a Person other than a
broker-dealer for an Exchange Note in the Exchange Offer, (ii) following the
exchange by a broker-dealer in the Exchange Offer of a Note for an Exchange
Note, the date on which such Exchange Note is sold to a purchaser who receives
from such broker-dealer on or prior to the date of such sale a copy of the
prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Note has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement or
(iv) the date on which such Note is distributed to the public pursuant to
Rule 144 under the Securities Act.
"TRUSTEE" shall mean the trustee under the Indenture.
2. Registration Under the Act.
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(a) EXCHANGE OFFER. To the extent not prohibited by any applicable law
or applicable interpretation of the staff of the Commission, the Company shall,
for the benefit of the Holders, at the Company's cost, use its best efforts to
cause to be filed with the Commission an Exchange Offer Registration Statement
on or prior to 45 days after the Closing Date on an appropriate form under the
Act covering the offer by the Company to the Holders to exchange all of the
Registrable Securities (other than Private Exchange Notes) for a like aggregate
principal amount of Exchange Notes, to cause such Exchange Offer Registration
Statement to be declared effective under the Act by the Commission on or prior
to 120 days after the Closing Date, to cause such Registration Statement to
remain effective until the closing of the Exchange Offer and to cause the
Exchange Offer to be consummated on or prior to 45 days after the date on which
the Exchange Offer Registration Statement was declared effective under the Act
by the Commission. The Exchange Notes will be issued under the Indenture. Upon
the effectiveness of the Exchange Offer Registration Statement, the Company
shall promptly commence the Exchange Offer, it being the objective of such
Exchange Offer to enable each Holder (other than Participating Broker-Dealers
(as defined in Section 3(t) hereof)) eligible and electing to exchange
Registrable Securities for Exchange Notes (assuming that such Holder is not an
affiliate of the Company within the meaning of Rule 405 under the Act, acquires
the Exchange Notes in the ordinary course of such Holder's business and has no
arrangements or understandings with any Person to participate in the Exchange
Offer for the purpose of distributing the Exchange Notes) to transfer such
Exchange Notes from and after their receipt without any limitations or
restrictions under the Act or under state securities or blue sky laws.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement together with an appropriate letter
of transmittal and related documents;
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(ii) keep the Exchange Offer open for acceptance for a period of not
less than 30 days after the date notice thereof is mailed to the Holders,
or longer if required by applicable law (such period being referred to
herein as the "EXCHANGE PERIOD");
(iii) utilize the services of the Depository for the Exchange Offer;
(iv) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York City time, on the last business day of the
Exchange Period, by sending to the institution specified in the notice a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Notes delivered for exchange, and a
statement that such Holder is withdrawing its election to have such Notes
exchanged;
(v) notify each Holder that any Note not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Agreement (except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(vi) otherwise comply in all respects with all applicable laws
relating to the Exchange Offer.
If, prior to consummation of the Exchange Offer, any Initial Purchaser
holds any Notes acquired by it and having the status of an unsold allotment in
the initial distribution, the Company upon the request of such Initial Purchaser
shall, simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to such Initial Purchaser in exchange (the "PRIVATE
EXCHANGE") for Notes held by the Initial Purchasers a like principal amount of
debt securities of the Company that are identical (except that such securities
shall bear appropriate transfer restrictions) to the Exchange Notes (the
"PRIVATE EXCHANGE NOTES") and which are issued pursuant to the Indenture (which
will provide that the Exchange Notes will not be subject to the transfer
restrictions set forth in the Indenture and that the Exchange Notes, the Private
Exchange Notes and the Notes will vote and consent together on all matters as
one class and that none of the Exchange Notes, the Private Exchange Notes or the
Notes will have the right to vote or consent as a separate class on any matter).
The Private Exchange Notes shall be of the same series as and shall bear the
same CUSIP number as the Exchange Notes.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall;
(i) accept for exchange all Notes or portions thereof duly tendered
and not validly withdrawn pursuant to the Exchange Offer;
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(ii) accept for exchange all Notes or portions thereof duly tendered
pursuant to the Private Exchange; and
(iii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company, and issue, and cause the Trustee to promptly authenticate and
deliver to each Holder, a new Exchange Note or Private Exchange Note, as
the case may be, equal in principal amount to the principal amount of the
Notes surrendered by such Holder.
To the extent not prohibited by applicable law or any applicable
interpretation of the staff of the Commission, the Company shall use its best
efforts to complete the Exchange Offer as provided above, and shall comply with
all applicable requirements of the Act, the Exchange Act and other applicable
laws in connection with the Exchange Offer. The Exchange Offer shall not be
subject to any condition, other than that (i) the Exchange Offer does not
violate any applicable law or interpretation of the staff of the Commission,
(ii) no action or proceeding has been instituted or threatened in any court or
by or before any governmental agency with respect to the Exchange Offer which,
in the reasonable judgment of the Company, might impair the ability of the
Company to proceed with the Exchange Offer, (iii) there has not been any
material change, or development involving a prospective material change, in the
business or financial affairs of the Company or any of its subsidiaries which,
in the reasonable judgment of the Company, would materially impair the Company's
ability to consummate the Exchange Offer or have a material adverse effect on
the Company if the Exchange Offer is consummated, (iv) there has not been
proposed, adopted, or enacted any law, statute, rule or regulation which, in the
reasonable judgment of the Company, might materially impair the ability of the
Company to proceed with the Exchange Offer or have a material adverse effect on
the Company if the Exchange Offer is consummated or (v) all governmental
approvals which the Company shall reasonably deem necessary for the consummation
of the Exchange Offer as contemplated shall have been obtained. Each Holder of
Registrable Securities who wishes to exchange such Registrable Securities for
Exchange Notes in the Exchange Offer will be required to make certain customary
representations in connection therewith, including representations that such
Holder is not an affiliate of the Company within the meaning of Rule 405 under
the Act, that any Exchange Notes to be received by it will be acquired in the
ordinary course of business and that at the time of the commencement of the
Exchange Offer it had no arrangement with any Person to participate in the
distribution (within the meaning of the Act) of the Exchange Notes and will be
required to make such other representations as may be necessary under applicable
Commission rules, regulations or interpretations to render available the use of
Form S-4 or any other appropriate form under the Act. The Company shall inform
the Initial Purchasers, after consultation with the Trustee and the Initial
Purchasers, of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Registrable Securities in the Exchange
Offer.
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In the event that the Company is unable to consummate the Exchange
Offer due to any event listed in clauses (i) through (v) in the paragraph
immediately above, the Company shall not be deemed to have breached any covenant
under this Section 2(a).
Upon consummation of the Exchange Offer in accordance with this
Section 2(a), the provisions of this Agreement shall continue to apply, MUTATIS
MUTANDIS, solely with respect to Registrable Securities that are Private
Exchange Notes and Exchange Notes held by Participating Broker-Dealers, and the
Company shall have no further obligation to register Registrable Securities
(other than Private Exchange Notes) pursuant to Section 2(b) of this Agreement.
(b) SHELF REGISTRATION. In the event that (i) the Company is not
permitted to commence or accept tenders pursuant to the Exchange Offer because
the Exchange Offer is not permitted by applicable law or Commission policy, (ii)
any Holder of Transfer Restricted Securities notifies the Company within 20
business days after the consummation of the Exchange Offer that (a) it is
prohibited by law or Commission policy from participating in the Exchange Offer,
(b) that it may not resell the Exchange Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the prospectus contained
in the Exchange Offer Registration Statement is not appropriate or available for
such resales or (c) that it is a broker-dealer and owns Notes acquired directly
from the Company or an affiliate of the Company, or (iii) the Exchange Offer is
not for any other reason consummated within 165 days of the Closing Date, the
Company shall, at its cost, cause to be filed with the Commission as promptly as
practicable after such determination or date, as the case may be, and, in any
event, on or prior to 45 days thereafter, a Shelf Registration Statement
providing for the sale by the Holders of all of the Registrable Securities, and
shall use its best efforts to cause such Shelf Registration Statement declared
effective by the Commission on or prior to 90 days after such determination or
date. No Holder of Registrable Securities may include any of its Registrable
Securities in any Shelf Registration pursuant to this Agreement unless and until
such Holder furnishes to the Company in writing, within 15 days after receipt of
a request therefor, such information as the Company may, after conferring with
counsel with regard to information relating to Holders that would be required by
the Commission to be included in such Shelf Registration Statement or Prospectus
included therein, reasonably request for inclusion in any Shelf Registration
Statement or Prospectus included therein. Each Holder as to which any Shelf
Registration is being effected agrees to furnish promptly to the Company all
information required to be disclosed in the applicable Shelf Registration
Statement or Prospectus included therein by the rules and regulations of the
Commission applicable to the Shelf Registration Statement in order to make the
information previously furnished to the Company by such Holder not materially
misleading.
The Company agrees, subject to applicable law or applicable
interpretation of the staff of the Commission, to use its reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended under the Act for a period ending on the earlier of the
date which is two years from the Closing Date (subject
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to extension pursuant to the last paragraph of Section 3) or the date on which
all of the Registrable Securities covered by the Shelf Registration Statement
have been sold pursuant to the Shelf Registration Statement or cease to be
outstanding (the "EFFECTIVENESS PERIOD"). The Company shall not permit any
securities other than Registrable Securities to be included in the Shelf
Registration. The Company will, in the event a Shelf Registration Statement is
declared effective, provide to each Holder copies of the prospectus which is a
part of the Shelf Registration Statement, notify each such Holder when the Shelf
Registration Statement has become effective and take certain other actions as
are customary to permit unrestricted resales of the Registrable Securities
covered by the Shelf Registration Statement. The Company further agrees, if
necessary, to use its reasonable best efforts to supplement or amend the Shelf
Registration Statement, if required by the Act or the rules, regulations or
instructions applicable to the registration form used by the Company for such
Shelf Registration Statement or by any other rules and regulations thereunder
for shelf registrations, or if reasonably requested by the Majority Holders, and
the Company agrees to furnish to the Holders copies of any such supplement or
amendment promptly after its being used or filed with the Commission.
(c) EXPENSES. The Company shall pay all Registration Expenses in
connection with registrations pursuant to Section 2(a) or 2(b). Each Holder
shall pay all expenses of its counsel (other than the fees described in clauses
(i) and (ii) of the definition of "Registration Expenses"), underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of such Holder's Registrable Securities pursuant to the Exchange
Offer Registration Statement and the Shelf Registration Statement.
(d) EFFECTIVE REGISTRATION STATEMENT. An Exchange Offer Registration
Statement pursuant to Section 2(a) hereof or a Shelf Registration Statement
pursuant to Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the Commission; PROVIDED, HOWEVER, that
if, after it has been declared effective, the offering of Registrable Securities
pursuant to a Shelf Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or any other
governmental agency or court, such Registration Statement will be deemed not to
have been effective during the period of such interference, until the offering
of Registrable Securities pursuant to such Registration Statement may legally
resume.
(e) LIQUIDATED DAMAGES. In the event that an Exchange Offer
Registration Statement has not been filed with the Commission on or prior to 45
days after the Closing Date, additional interest payable by the Company as
liquidated damages ("LIQUIDATED DAMAGES") will accrue on the Notes from and
including the 31st day after the Closing Date until but excluding the date such
Exchange Offer Registration Statement is filed. In addition, if on or prior to
120 days after the Closing Date, such Exchange Offer Registration Statement is
not declared effective under the Act by the Commission, Liquidated Damages will
accrue on the Notes from and including the 121st day after the Closing Date
until but excluding the date such Exchange Offer Registration Statement is
declared effective. Further, if on or prior to 45 days after the date specified
for effectiveness of the Exchange Offer Registration
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Statement the Exchange Offer is not consummated, Liquidated Damages will accrue
on the Notes from and including the 46th day after the date specified for
effectiveness of the Exchange Offer Registration Statement, but excluding, the
consummation of the Exchange Offer. If a Shelf Registration Statement is
required to be filed pursuant to Section 2(b) and such Shelf Registration
Statement is not filed or declared effective within the time periods provided by
Section 2(b) hereof for such filing or declaration, Liquidated Damages will
accrue on the Notes (other than those exchanged in the Exchange Offer) or the
Private Exchange Notes, as the case may be, from and including the day
immediately following such default until but excluding the effective date of the
Shelf Registration Statement. Further, if the Shelf Registration Statement or
the Exchange Offer Registration Statement is declared effective but thereafter
ceases to be effective or usable during the time periods specified in this
Agreement, Liquidated Damages will accrue on the Notes (other than those
exchanged in the Exchange Offer) or the Private Exchange Notes, as the case may
be, from and including the day immediately following such default until but
excluding the date such Registration Statement becomes effective or usable. In
each case, such Liquidated Damages will be payable in cash semiannually in
arrears, with the first semiannual payment due on the first interest payment
date in respect of the Notes (or the Private Exchange Notes) following the date
from which Liquidated Damages begin to accrue, and will accrue, under each
circumstance set forth above at a rate per annum equal to an additional one half
of one percent (0.50%) of the principal amount of the Notes (or the Private
Exchange Notes) upon the occurrence of each such circumstance, which rate will
increase by one half of one percent (0.50%) for each 90-day period that such
Liquidated Damages continue to accrue under any circumstance, with an aggregate
maximum increase in the interest rate per annum equal to two percent (2.00%).
Upon the filing of the Exchange Offer Registration Statement, the
effectiveness of the Exchange Offer Registration Statement, or the consummation
of the Exchange Offer, as the case may be, the interest rate borne by the Notes
will be reduced by the full amount of any such increase to the extent that such
increase related to the failure of any such event to have occurred. Upon the
effectiveness of a Shelf Registration Statement, the interest rate borne by the
Notes (and the Private Exchange Notes) shall be reduced, from and as of the date
of such effectiveness, to the original interest rate of the Notes unless and
until increased as described above. Notwithstanding anything to the contrary
contained herein, the Company (i) shall not be required to amend or supplement
the Shelf Registration Statement, any related prospectus or any document
incorporated therein by reference and (ii) may suspend the effectiveness of any
such Shelf Registration Statement in the event that, and for a period not to
exceed, for so long as this Agreement is in effect, an aggregate of 90 days in
any one calendar year if (A) an event occurs and is continuing as a result of
which the Shelf Registration Statement, any related prospectus or any document
incorporated therein by reference as then amended or supplemented would, in the
Company's good faith judgment, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading, and (B) the Company determines in its good faith judgment that
the disclosure of such event at such time would have a material adverse effect
on the business, operations or prospects of the Company;
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provided that any such suspension shall not relieve the Company from its
obligation to pay Liquidated Damages.
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Liquidated
Damages is required to be paid (an "EVENT DATE"). Liquidated Damages shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders of
Notes, Exchange Notes or Private Exchange Notes, as the case may be, on or
before the applicable semiannual interest payment date, immediately available
funds in sums sufficient to pay the Liquidated Damages then due. The Liquidated
Damages due shall be payable on each interest payment date to the record Holder
of Notes entitled to receive the interest payment to be paid on such date as set
forth in the Indenture. Each obligation to pay Liquidated Damages shall be
deemed to accrue from and including the day following the applicable Event Date.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies available to
the Initial Purchasers and the Holders, the Company acknowledges that any
failure by the Company to comply with its obligations under Section 2(a) and
Section 2(b) hereof would result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
would not be possible to measure damages for such injuries precisely and that,
in the event of any such failure, the Initial Purchasers or any Holder may
obtain such relief as may be required to specifically enforce the Company's
obligations under Section 2(a) and Section 2(b) hereof.
3. REGISTRATION PROCEDURES. In connection with the obligations of the
Company with respect to the Registration Statements pursuant to Sections 2(a)
and 2(b) hereof, the Company shall:
(a) prepare and file with the Commission a Registration Statement or
Registration Statements as prescribed by Sections 2(a) and 2(b) within the
relevant time periods specified in Section 2 hereof on the appropriate form
under the Act, which form (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders and (iii) shall comply as to
form in all material respects with the requirements of the applicable form
and include or incorporate by reference all financial statements required
by the Commission to be filed therewith, and the Company shall use its best
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2; PROVIDED, HOWEVER that if (1) such
filing is pursuant to Section 2(b), or (2) a Prospectus contained in an
Exchange Offer Registration Statement filed pursuant to Section 2(a) is
required to be delivered under the Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes, before filing any Registration Statement
or Prospectus or any amendments or supplements thereto, the Company, if
requested, shall furnish to and afford the Holders and each such
Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if
any, a reasonable
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opportunity to review copies of all such documents (including copies of any
documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed at least five business days prior to such filing. The
Company shall not file any Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders, pursuant
to this Agreement, must be afforded an opportunity to review prior to the
filing of such document, if the Majority Holders or such Participating
Broker-Dealer, as the case may be, their counsel or the managing
underwriters, if any, shall reasonably object;
(b) subject to Section 3(a) hereof, prepare and file with the
Commission such amendments and post-effective amendments to each
Registration Statement as may be necessary to keep such Registration
Statement effective for the Effectiveness Period or the Applicable Period.
as the case may be, and cause each Prospectus to be supplemented by any
required prospectus supplement and as so supplemented to be filed pursuant
to Rule 424 (or any similar provision then in force) under the Act, and
comply with the provisions of the Act, the Exchange Act and the rules and
regulations promulgated thereunder applicable to it with respect to the
disposition of all securities covered by each Registration Statement during
the Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder, at
least five business days prior to filing, that a Shelf Registration
Statement with respect to the Registrable Securities is being filed and
advising such Holder that the distribution of Registrable Securities will
be made in accordance with the method selected by the Majority Holders,
(ii) furnish to each Holder and to each underwriter of an underwritten
offering of Registrable Securities, if any, without charge, as many copies
of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, in order to facilitate the public sale
or other disposition of the Registrable Securities, and (iii) subject to
the last paragraph of this Section 3, consent to the use of the Prospectus
or any amendment or supplement thereto by each of the selling Holders in
connection with the offering and sale of the Registrable Securities covered
by the Prospectus or any amendment or supplement thereto, provided that
such use complies with all applicable laws and regulations;
(d) use its best efforts to register or qualify the Registrable
Securities under all applicable state securities or "blue sky" laws of such
jurisdictions as any Holder of Registrable Securities covered by a
Registration Statement and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time the applicable
Registration Statement is declared effective by the Commission, and do any
and all other acts and things which may be reasonably necessary or
advisable to enable such Holder and underwriter to consummate the dis-
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position in each such jurisdiction of such Registrable Securities owned by
such Holder; PROVIDED, HOWEVER, that the Company shall not be required to
(i) qualify as a foreign partnership or foreign corporation or as a dealer
in securities in any jurisdiction where it would not otherwise be required
to qualify but for this Section 3(d), (ii) file any general consent to
service of process in any jurisdiction where it would not otherwise be
subject to such service of process or (iii) subject itself to taxation in
any such jurisdiction if it is not then so subject;
(e) in the case of (A) a Shelf Registration or (B) Participating
Broker-Dealers who have notified the Company that they will be utilizing
the Prospectus contained in the Exchange Offer Registration Statement as
provided in Section 3(t) hereof, are seeking to sell Exchange Notes and are
required to deliver Prospectuses, notify each Holder, or such Participating
Broker-Dealers, as the case may be, their counsel and the managing
underwriters, if any, promptly and, if requested by such Holder or
Participating Broker-Dealer, confirm such notice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request by
the Commission or any state securities authority for amendments and
supplements to a Registration Statement or Prospectus or for additional
information after the Registration Statement has become effective, (iii) of
the issuance by the Commission or any state securities authority of any
stop order suspending the effectiveness of a Registration Statement or the
initiation of any proceedings for that purpose, (iv) in the case of a Shelf
Registration, if, between the effective date of a Registration Statement
and the closing of any sale of Registrable Securities covered thereby, the
representations and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to such offering cease to be true and correct in all material
respects, (v) if the Company receives any notification with respect to the
suspension of the qualification of the Registrable Securities or the
Exchange Notes to be sold by any Participating Broker-Dealer for offer or
sale in any jurisdiction or the initiation of any proceeding for such
purpose, (vi) of the happening of any event or the failure of any event to
occur or the discovery of any facts or otherwise, during the period a Shelf
Registration Statement is effective or the Applicable Period, as the case
may be, which makes any statement made in the Shelf Registration Statement,
the Exchange Offer Registration Statement or any related Prospectus untrue
in any material respect or which causes such Registration Statement or
Prospectus, as the case may be, to omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (vii) the Company's reasonable
determination that a post-effective amendment to the Registration Statement
would be appropriate;
(f) use its best efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
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(g) in the case of a Shelf Registration. furnish to each Holder. upon
request and without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the selling
Holders to facilitate the timely preparation and delivery of certificates,
if any, representing Registrable Securities to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with the Depository; and cause such Registrable Securities to be in
such denominations (consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the managing
underwriters may reasonably request at least two business days prior to the
closing of any sale of Registrable Securities;
(i) subject to Section 3(a) hereof and the second paragraph of Section
2(e) hereof, in the case of a Shelf Registration or an Exchange Offer
Registration. upon the occurrence of any circumstance contemplated by
Section 3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v), 3(e)(vi) or 3(e)(vii)
hereof, use its best efforts to prepare a supplement or post-effective
amendment to the Registration Statement and the related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of the
Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading. The Company agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable after the
occurrence of any such circumstance, and each Holder hereby agrees to
suspend use of the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission;
(j) in the case of a Shelf Registration, furnish to each Holder of
Registrable Securities, upon request and without charge, a reasonable
number of copies of any document which is incorporated by reference into or
is an exhibit to a Registration Statement or a Prospectus after the initial
filing of a Registration Statement;
(k) obtain a CUSIP number for all Exchange Notes or Registrable
Securities, as the case may be, not later than the effective date of a
Registration Statement, and provide the Trustee with printed certificates
for the Exchange Notes or the Registrable Securities, as the case may be,
in a form eligible for deposit with the Depository;
(1) cause the Indenture to be qualified under the TIA in connection
with the registration of the Exchange Notes or Registrable Securities, as
the case may be, cooperate with the Trustee and the Holders to effect such
changes to the Indenture
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as may be required for the Indenture to be so qualified in accordance with
the terms of the TIA and execute, and use its best efforts to cause the
Trustee to execute. all documents as may be required to effect such
changes. and all other forms and documents required to be filed with the
Commission to enable the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into such agreements
(including underwriting agreements) as are customary in underwritten public
offerings and take all such other appropriate actions as are reasonably
requested in order to expedite or facilitate the registration or the
disposition of such Registrable Securities. and in such connection, whether
or not an underwriting agreement is entered into and whether or not the
registration is an underwritten registration: (i) make such representations
and warranties to Holders of such Registrable Securities and the
underwriters (if any), with respect to the business of the Company and its
subsidiaries and the Registration Statement, the Prospectus and all
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters
in underwritten public offerings, and confirm the same if and when
reasonably requested; (ii) obtain customary opinions of counsel to the
Company and updates thereof in form and substance reasonably satisfactory
to the managing underwriters (if any) and the Holders of a majority in
principal amount of the Registrable Securities being sold, addressed to
each selling Holder and the underwriters (if any) covering the matters
customarily covered in opinions requested in underwritten public offerings
and such other matters as may be reasonably requested by such Holders and
underwriters; (iii) obtain "cold comfort" letters and updates thereof in
form and substance reasonably satisfactory to the managing underwriters
from the independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired or to be acquired by
the Company for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to the
selling Holders of Registrable Securities and to each of the underwriters,
such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
underwritten public offerings; and (iv) if an underwriting agreement is
entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 4 hereof (or
such other provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Registrable Securities covered by such
Registration Statement and the managing underwriters or agents) with
respect to all parties to be indemnified pursuant to said Section. The
above shall be done at each closing under such underwriting agreement. or
as and to the extent required thereunder;
(n) if (A) a Shelf Registration is filed pursuant to Section 2(b) or
(B) a Prospectus contained in an Exchange Offer Registration Statement
filed pursuant to Section 2(a) is required to be delivered under the Act by
any Participating
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Broker-Dealer who seeks to sell Exchange Notes during the Applicable
Period, make available for inspection by any selling Holder of such
Registrable Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "INSPECTORS"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "RECORDS") as shall be reasonably necessary
to enable them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Company and its
subsidiaries to supply all information in each case reasonably requested by
any such Inspector in connection with such Registration Statement. Records
which the Company determines, in good faith, to be confidential and as to
which they notify the Inspectors are confidential shall not be disclosed by
the Inspectors unless, after prior consultation with the Company, (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or omission in such Registration Statement, (ii) the release
of such Records is ordered pursuant to an effective subpoena or other order
from a court of competent jurisdiction or (iii) the information in such
Records has been made generally available to the public, other than as a
result of a breach of confidentiality or secrecy to the Company. Each
selling Holder of such Registrable Securities and each such Participating
Broker-Dealer will be required to agree that information obtained by it as
a result of such inspections shall be deemed confidential and shall not be
used by it as the basis for any market transactions in the securities of
the Company unless and until such is made generally available to the
public, other than as a result of a breach of confidentiality or secrecy to
the Company. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to further agree that it
will, upon learning that disclosure of such Records is sought in a court of
competent jurisdiction or is otherwise required upon the written advice of
counsel to such Participating Broker-Dealer, give notice to the Company and
allow the Company at its expense to undertake appropriate action to prevent
disclosure of the Records deemed confidential;
(o) comply with all applicable rules and regulations of the Commission
and, as soon as reasonably practicable, make generally available to the
Holders earnings statements of the Company covering at least 12 months
satisfying the provisions of Section 11(a) of the Act and Rule 158
thereunder (or any similar rule promulgated under the Act);
(p) upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Company addressed to the Trustee for
the benefit of all Holders of Registrable Securities participating in the
Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) the
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Company has duly authorized, executed and delivered the Exchange Notes and
Private Exchange Notes and the Indenture, as the case may be, and (ii) each
of the Exchange Notes or the Private Exchange Notes and the Indenture, as
the case may be, constitute a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its respective
terms (in each case, with customary exceptions);
(q) if an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the Company (or
to such other Person as directed by the Company) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the
Company shall xxxx, or cause to be marked, on such Registrable Securities
delivered by such Holders that such Registrable Securities are being
cancelled in exchange for the Exchange Notes or the Private Exchange Notes,
as the case may be; in no event shall such Registrable Securities be marked
as paid or otherwise satisfied;
(r) cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the NASD:
(s) use its best efforts to take all other steps necessary to effect
the registration of the Registrable Securities covered by a Registration
Statement contemplated hereby;
(t) (A) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution," which section shall be reasonably acceptable to the
Initial Purchasers or another representative of the Participating
Broker-Dealers, and which shall contain a summary statement of the
positions taken or policies made by the staff of the Commission with
respect to the potential "underwriter" status of any broker-dealer (a
"PARTICIPATING BROKER-DEALER") that holds Registrable Securities acquired
for its own account as a result of market-making activities or other
trading activities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Notes to be received by such
broker-dealer in the Exchange Offer, whether such positions or policies
have been publicly disseminated by the staff of the Commission or such
positions or policies, in the reasonable judgment of the Initial Purchasers
or such other representative, represent the prevailing views of the staff
of the Commission, including a statement that any such broker-dealer who
receives Exchange Notes for Registrable Securities pursuant to the Exchange
Offer may be deemed a statutory underwriter and must deliver a prospectus
meeting the requirements of the Act in connection with any resale of such
Exchange Notes, (ii) furnish to each Participating Broker-Dealer who has
delivered to the Company the notice referred to in Section 3(e), without
charge, as many copies of each Xxxxxxxxxx
00
00
included in the Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request, (iii) subject to the
last paragraph of this Section 3, hereby consent to the use of the
Prospectus forming part of the Exchange Offer Registration Statement or any
amendment or supplement thereto, by any Person subject to the prospectus
delivery requirements of the Commission, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange
Notes covered by the Prospectus or any amendment or supplement thereto,
(iv) use its best efforts to keep the Exchange Offer Registration Statement
effective and to amend and supplement the Prospectus contained therein, in
order to permit such Prospectus to be lawfully delivered by all Persons
subject to the prospectus delivery requirements of the Act for such period
of time as such Persons must comply with such requirements in order to
resell the Exchange Notes (PROVIDED, HOWEVER, that such period shall not be
required to exceed 180 days, or such longer period if extended pursuant to
the last sentence of this Section 3 (the "APPLICABLE PERIOD")), and (v)
include in the transmittal letter or similar documentation to be executed
by an exchange offeree all necessary information for such offeree to
participate in the Exchange Offer;
(B) in the case of any Exchange Offer Registration Statement, the
Company agrees to deliver to the Initial Purchasers or to another
representative of the Participating Broker-Dealers on behalf of the
Participating Broker-Dealers upon consummation of the Exchange Offer (i) an
opinion of counsel substantially in the form attached hereto as EXHIBIT A,
(ii) an Officers' Certificate containing certifications substantially
similar to those set forth in Section 8(d) of the Purchase Agreement and
such additional certifications as are customarily delivered in a public
offering of debt securities, and (iii) a comfort letter in customary form
permitted by Statement of Auditing Standards No. 72 of the American
Institute of Certified Public Accountants.
The Company may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such
Registrable Securities as the Company may from time to time reasonably request
in writing. The Company may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
In the case of (i) a Shelf Registration Statement or (ii)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(t) hereof, are seeking to sell Exchange Notes and are
required to deliver copies of such Prospectus, each Holder agrees that, upon
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3(e)(ii), 3(e)(iii), 3(e)(iv), 3(e)(v), 3(e)(vi) or
3(e)(vii) hereof, such Holder will forthwith discontinue disposition of
Registrable Securities
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pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof or
until it is advised in writing by the Company that the use of the applicable
Prospectus may be resumed, and, if so directed by the Company, such Holder will
deliver to the Company (at the Company's expense) all copies in such Holder's
possession, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Registrable Securities or Exchange Notes, as the
case may be, current at the time of receipt of such notice. If the Company shall
give any such notice to suspend the disposition of Registrable Securities or
Exchange Notes, as the case may be, pursuant to a Registration Statement, the
Company shall use its best efforts to file and have declared effective (if an
amendment) as soon as practicable an amendment or supplement to the Registration
Statement and shall extend the period during which such Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
in the period from and including the date of the giving of such notice to and
including the date when the Company shall have made available to the Holders
copies of the supplemented or amended Prospectus necessary to resume such
dispositions or shall have advised the Holders in writing that the use of the
applicable Prospectus may be resumed.
4. INDEMNIFICATION AND CONTRIBUTION. (a) The Company shall indemnify
and hold harmless the Initial Purchasers, each Holder, each Participating
Broker-Dealer, each underwriter who participates in an offering of Registrable
Securities, each of their respective affiliates, each Person, if any, who
controls any of such parties within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and each of their respective directors,
officers, partners, employees, representatives and agents, to the fullest extent
lawful as follows:
(i) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact contained
in any Registration Statement or any amendment thereto pursuant to which
the offer and sale of the Registrable Securities or Exchange Notes were
registered under the Act including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus or any amendment
or supplement thereto. or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(ii) from and against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by
any court or governmental agency or body, ,whether commenced or threatened,
or any claim whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or
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omission, if and only if such settlement is effected with the prior written
consent of the Company; and
(iii) from and against any and all expenses whatsoever (including
reasonable fees and disbursements of counsel chosen by the Initial
Purchasers, Holder, Participating Broker-Dealer or underwriter (except to
the extent otherwise expressly provided in Section 4(c) hereof)), as
incurred, reasonably incurred in investigating, preparing for or defending
against any litigation. or any investigation or proceeding by any court or
governmental agency or body. whether commenced or threatened, or any other
claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section 4(a);
PROVIDED, HOWEVER, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission (i) made solely in reliance
upon and in conformity with written information furnished to the Company by the
Initial Purchasers, such Holder, such Participating Broker-Dealer or any
underwriter in writing expressly for use in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto) or
(ii) contained in any preliminary prospectus or any Prospectus if the Initial
Purchasers, such Holder, such Participating Broker-Dealer or such underwriter
failed to send or deliver a copy of the Prospectus (as then amended or
supplemented if the Company shall have timely furnished any amendments or
supplements thereto) to the Person asserting such losses, liabilities. claims or
damages on or prior to the-delivery of written confirmation of any sale of
securities covered thereby to such Person in any case where such delivery is
required by the Act and such Prospectus (as so amended or supplemented) would
have corrected such untrue statement or omission and the delivery thereof would
have eliminated such losses, claims, damages or liabilities. Any amounts
advanced by the Company to an indemnified party pursuant to this Section 4 as a
result of such losses shall be returned to the Company if it shall be determined
by a court that such indemnified party was not entitled to indemnification by
the Company.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Initial Purchasers, each underwriter who
participates in an offering of Registrable Securities and the other selling
Holders and each of their respective directors, officers (including each officer
of the Company who signed the Registration Statement), employees,
representatives and agents, and each Person, if any, who controls the Company,
the Initial Purchasers, any underwriter or any other selling Holder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and
against any and all loss, liability, claim, damage and expense whatsoever
described in the indemnity contained in Section 4(a) hereof, as reasonably
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions. made in the Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement thereto)
solely in reliance upon and in conformity with written information furnished to
the
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Company by such selling Holder expressly for use in the Registration Statement
(or any amendment thereto) or any such Prospectus (or any amendment or
supplement thereto); PROVIDED, HOWEVER, that, in the case of a Shelf
Registration Statement, no such Holder shall be liable for any claims hereunder
in excess of the amount of net proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers properly
served on such indemnified party (but failure to notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder to the
extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have other than on account
of this indemnity agreement). An indemnifying party may participate, at its own
expense, in the defense of any such action. If an indemnifying party so elects
within a reasonable time after receipt of such notice, such indemnifying party,
jointly with any other indemnifying party. may assume the defense of such action
with counsel chosen by it and reasonably satisfactory to the indemnified parties
defendant in such action; PROVIDED, HOWEVER, that if any such indemnified party
reasonably determines, upon written advice of counsel, that there may be legal
defenses available to such indemnified party which are different from or in
addition to those available to such indemnifying party or that representation of
such indemnifying party and any indemnified party by the same counsel would
present a conflict of interest, then one additional counsel in each jurisdiction
for all indemnified parties having consistent interests and such different or
additional defenses or subject to such conflict shall be entitled to conduct the
defense of such indemnified parties with the fees and expenses of such counsel
to be borne by the indemnifying party or parties. If an indemnifying party
assumes the defense of an action in accordance with and as permitted by the
provisions of this Section 4(c), such indemnifying party shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred thereafter
in connection with such action (except to the extent set forth in the proviso
contained in the immediately preceding sentence). In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel for all indemnified parties in connection with any one action, or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, which consent
shall not be unreasonably withheld, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 4, unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and 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.
(d) Notwithstanding any payment or payments made by the Company
hereunder, the Company hereby expressly waives subrogation to, and agrees that
it shall not
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be entitled to be subrogated to, any of the rights of any indemnified party
against the Company or any other right of offset held by any indemnified party
for the payment of any amounts owed to any indemnified party pursuant to this
Section 4; PROVIDED, HOWEVER, that if any of the foregoing provisions of this
paragraph are held to be contrary to applicable law or unenforceable by a court
of competent jurisdiction, the Company hereby expressly agrees that any right of
subrogation or contribution that the Company may have as a result of such
applicable law or unenforceability, as the case may be, shall be subordinate in
right of payment to the payment in full in cash of all amounts owed to any
indemnified party pursuant to this Section 4.
(e) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
herein, then each indemnifying party shall contribute to the aggregate amount of
such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the indemnifying party or parties on
the one hand and the indemnified party or parties on the other hand from the
offering of the Notes pursuant to the Purchase Agreement, or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
The relative benefits received by the Company on the one hand and the
Initial Purchasers on the other hand in connection with the offering of the
Notes pursuant to the Purchase Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Notes
pursuant to the Purchase Agreement (before deducting expenses) received by the
Company and the total discount received by the Initial Purchasers bear to the
aggregate initial offering price of the Notes.
The relative fault of the Company on the one hand and the Holders on
the other hand shall be determined by reference to, among other things, whether
any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to sate a material fact relates to information supplied by the
Company or by the Holders, and the respective parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 4 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 above in this Section 4(e). The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 4(e) shall be deemed to include
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any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing for or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any untrue or alleged untrue
statement or omission or alleged omission referred to in Section 4(a)(i).
Notwithstanding the provisions of this Section 4(e), no Initial
Purchaser shall be required to contribute any amount in excess of the amount by
which the total discount received by such Initial Purchaser in respect of the
purchase price of the Notes purchased by it from the Company exceeds the amount
of any damages which the Initial Purchasers 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 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4(c), each person, if any, who controls
an Initial Purchaser, a Holder, a Participating Broker-Dealer, an underwriter
who participates in an offering of Registrable Securities, or the affiliates of
any of them, within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the Initial
Purchasers, and each director, officer (including each officer of the Company
who signed the Registration Statement), partner, employee, representative and
agent of the Company, the Initial Purchasers, each Holder, each Participating
Broker-Dealer, and each underwriter who participates in an offering of
Registrable Securities and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall
have the same rights to contribution as the Company.
5. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Holder may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Registrable Securities on the basis provided in any
customary underwriting arrangements approved by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in such
offering and (b) completes and executes all reasonable questionnaires, powers of
attorney, indemnities, underwriting agreements, lock-up letters and other
documents reasonably required in connection with such underwriting arrangements.
6. SELECTION OF UNDERWRITERS. In any underwritten offering, the
underwriter or underwriters and manager or managers that will administer the
offering will be selected by the Holders of a majority in aggregate principal
amount of the Registrable Securities included in such offering; PROVIDED,
HOWEVER, that such underwriters and managers must be reasonably satisfactory to
the Company.
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7. Miscellaneous.
-------------
(a) NO INCONSISTENT AGREEMENTS. The Company has not entered into nor
will the Company on or after the date of this Agreement enter into any agreement
that is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Majority Holders; provided, however, that no amendment, modification or
supplement or waiver or consent to the departure with respect to the provisions
of Section 4 hereof shall be effective as against any Holder of Registrable
Securities unless consented to in writing by such Holder of Registrable
Securities.
(c) NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given if sent by registered or
certified mail, postage prepaid, sent by any national courier service
guaranteeing overnight delivery or transmitted by any standard form of
telecommunication, as follows: (i) if to a Holder, at the most current address
given by such Holder to the Company in accordance with the provisions of this
Section 7(c), which address, with respect to an Initial Purchaser, shall
initially be the address provided for such Initial Purchaser in the Purchase
Agreement; and (ii) if to the Company, at its address as set forth in the
Purchase Agreement, or at such other address provided in accordance with the
provisions of this Section 7(c).
All such notices and communications shall be deemed to have been duly
given at the earlier of: (i) the time of actual receipt by the addressee; or
(ii) the time delivered, if personally delivered, or five business days after
being sent by registered or certified mail, postage prepaid, if mailed, or when
answered back, if telexed, or when transmission is confirmed, if telecopied, or
on the next business day, if timely delivered to a national courier service
guaranteeing overnight delivery.
Copies of all notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at its
address specified in the Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of the Initial
Purchasers, including, without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED, HOWEVER, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities, in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
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holding such Registrable Securities, such Person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement and such Person shall be entitled to receive the benefits hereof.
(e) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries of the agreements made hereunder between the Company, on the one
hand, and the Initial Purchasers, on the other hand, and the Holders shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of any
of the other Holders.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
(h) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) NOTES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company or any affiliate
of the Company (as such term is defined in Rule 405 under the Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(j) COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, when so executed, all such counterparts taken together shall
constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date first written above.
NORTEK, INC.
By: /s/ Xxxxx X. Xxxx
------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Accepted as of the
date first above written:
BEAR, XXXXXXX & CO. INC.
By: /s/
-------------------------
Name:
Title:
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title:
BT SECURITIES CORPORATION
By: /s/ Xxxxxx Silver
-------------------------
Name: Xxxxxx Silver
Title: Vice President
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Exhibit A
---------
Form of Opinion of Counsel
--------------------------
1. Each of the Exchange Offer Registration Statement and the
Prospectus (other than the financial statements, notes or schedules thereto and
other financial and statistical data and supplemental schedules included or
referred to therein or omitted therefrom and the Form T-1 as to which such
counsel need express no opinion), complies as to form in all material respects
with the applicable requirements of the Act and the applicable rules and
regulations promulgated under the Act.
2. In the course of such counsel's review and discussion of the
contents of the Exchange Offer Registration Statement and the Prospectus with
certain officers and other representatives of the Company and representatives of
the independent certified public accountants of the Company, but without
independent check or verification or responsibility for the accuracy,
completeness or fairness of the statements contained therein, on the basis of
the foregoing (relying as to materiality to a large extent upon representations
and opinions of officers and other representatives of the Company), no facts
have come to such counsel's attention which cause such counsel to believe that
the Exchange Offer Registration Statement (other than the financial statements,
notes and schedules thereto and other financial and statistical information
contained or referred to therein and the Form T-l, as to which such counsel need
express no belief), at the time the Exchange Offer Registration Statement became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements contained therein not misleading, or that the Prospectus (other than
the financial statements, notes and schedules thereto and other financial and
statistical information contained or referred to therein, as to which such
counsel need express no belief) contains any untrue statement of a material fact
or omits to state a material fact necessary to make the statements contained
therein, in the light of the circumstances under which they were made, not
misleading.
A-1
