EXECUTION COPY
Armor Holdings, Inc.
$150,000,000
8 1/4% Senior Subordinated Notes due 2013
REGISTRATION RIGHTS AGREEMENT
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August 12, 2003
Wachovia Capital Markets, LLC
One Wachovia Center
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Ladies and Gentlemen:
Armor Holdings, Inc., a Delaware corporation (the "Company") and the
Company's domestic subsidiaries listed on Schedule 1 hereto (the "Guarantors")
confirm their agreement with Wachovia Capital Markets, LLC ("Wachovia") (the
"Initial Purchaser") on the terms set forth herein.
This agreement (the "Registration Rights Agreement" or this
"Agreement") is being entered into in connection with a certain note purchase
agreement, dated August 6, 2003, by and among the Company, the Guarantors and
the Initial Purchaser (the "Purchase Agreement"), which provides for the
issuance and sale by the Company to the Initial Purchaser of $150,000,000
aggregate principal amount of the Company's 8 1/4% Senior Subordinated Notes due
2013 (the "Notes") to be unconditionally guaranteed on an unsecured senior
subordinated basis by the Guarantors (the "Note Guarantees"). In order to induce
the Initial Purchaser to enter into the Purchase Agreement, the Company and the
Guarantors have agreed to provide the registration rights set forth in this
Agreement for the benefit of the Initial Purchaser and its direct and indirect
transferees. The parties hereby agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Additional Interest" has the meaning set forth in Section 4
hereto.
"Affiliate" means, with respect to any specified person, any
other person that, directly or indirectly, is in control of, is controlled by,
or is under common control with, such
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specified person. For purposes of this definition, control of a person means the
power, direct or indirect, to direct or cause the direction of the management
and policies of such person whether by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble hereto.
"Business Day" means any day excluding Saturday, Sunday or any
other day which is a legal holiday under the laws of New York, New York or is a
day on which banking institutions therein located are authorized or required by
law or other governmental action to close.
"Commission" means the Securities and Exchange Commission.
"Consummate" means, with respect to a Registered Exchange
Offer, the occurrence of (a) the filing and effectiveness under the Act of the
Exchange Offer Registration Statement relating to the Exchange Notes to be
issued in the Registered Exchange Offer, (b) the maintenance of such
Registration Statement continuously effective and the keeping of the Registered
Exchange Offer open for a period not less than the minimum period required
pursuant to Section 2(c)(ii) hereof, (c) the Company's acceptance for exchange
of all Transfer Restricted Notes duly tendered and not validly withdrawn
pursuant to the Registered Exchange Offer and (d) the delivery of Exchange Notes
by the Company to the registrar under the Indenture in the same aggregate
principal amount as the aggregate principal amount of Transfer Restricted Notes
duly tendered and not validly withdrawn by Holders thereof pursuant to the
Registered Exchange Offer and the delivery of such Exchange Notes to such
Holders. The term "Consummation" has a meaning correlative to the foregoing.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Notes" means debt securities of the Company,
guaranteed by the Guarantors, substantially identical in all material respects
to the Notes other than issue date (except that the Additional Interest
provisions and the transfer restrictions pertaining to the Notes will be
modified or eliminated, as appropriate), to be issued under the Indenture in
connection with the Registered Exchange Offer.
"Exchange Offer Registration Period" means the 180-day period
following the Consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement or during which the
Company has suspended the use of the Prospectus contained therein pursuant to
Section 2(d); provided, however, that in the event that all resales of Exchange
Notes (including, subject to the time periods set forth herein, any resales by
Participating Broker-Dealers) covered by such Exchange Offer Registration
Statement have been made, the Exchange Offer Registration Statement need not
thereafter remain continuously effective for such period.
"Exchange Offer Registration Statement" means a registration
statement of the Company and the Guarantors on an appropriate form under the Act
with respect to the Registered Exchange Offer, all amendments and supplements to
such registration statement,
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including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Filing Date" has the meaning set forth in Section 2 hereto.
"Holder" means any holder from time to time of Transfer
Restricted Notes or Exchange Notes (including the Initial Purchaser).
"Indenture" means the indenture relating to the Notes and the
Exchange Notes, dated as of August 12, 2003, among the Company, the Guarantors
and Wachovia Bank, National Association, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof.
"Initial Purchaser" has the meaning set forth in the preamble
hereto.
"Issue Date" means August 12, 2003.
"Losses" has the meaning set forth in Section 8(d) hereto.
"Majority Holders" means the Holders of a majority of the
aggregate principal amount of Transfer Restricted Notes registered under a
Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering under a Shelf Registration Statement.
"Notes" has the meaning set forth in the preamble hereto.
"Participating Broker-Dealer" means any Holder (which may
include the Initial Purchaser) that is a broker-dealer electing to exchange
Notes acquired for its own account as a result of market-making activities or
other trading activities for Exchange Notes.
"Private Exchange Notes" has the meaning set forth in Section
2(g) hereof.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act or any similar rule that may be adopted by
the Commission), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Transfer Restricted
Notes covered by such Registration Statement, and all amendments and supplements
to the Prospectus.
"Purchase Agreement" has the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" means the proposed offer to the
Holders to issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Notes.
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"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Transfer
Restricted Notes (including the Note Guarantee) pursuant to the provisions of
this Agreement, 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.
"Shelf Registration" means a registration of Transfer
Restricted Notes with the Commission effected pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(c) hereof.
"Shelf Registration Statement" means a "shelf" registration
statement of the Company and the Guarantors filed pursuant to the provisions of
Section 3 hereof, which covers some or all of the Transfer Restricted Notes, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, and which may be in the format of an
amendment to the Exchange Offer Registration Statement if permitted by the
Commission, 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.
"Transfer Restricted Notes" means each Note upon original
issuance thereof and at all times subsequent thereto, each Private Exchange Note
as to which Section 3(a)(iii) or Section 3(a)(iv) applies upon original issuance
and at all times subsequent thereto, until in the case of any such Note or
Exchange Note, as the case may be, the earliest to occur of (i) the date on
which such Note has been exchanged by a person other than a Participating
Broker-Dealer for an Exchange Note (other than with respect to an Exchange Note
as to which Section 3(a)(iii) or Section 3(a)(iv) apply), (ii) with respect to
Exchange Notes received by Participating Broker-Dealers in the Registered
Exchange Offer, the date on which such Exchange Note has been sold by such
Participating Broker-Dealer by means of the Prospectus contained in the Exchange
Offer Registration Statement, (iii) a Shelf Registration Statement covering such
Note or Exchange Note, as the case may be, has been declared effective by the
Commission and such Note or Exchange Note, as the case may be, has been disposed
of in accordance with such effective Shelf Registration Statement, (iv) the date
on which such Note or Exchange Note, as the case may be, can be sold without any
limitations under clauses (c), (e), (f) or (h) of Rule 144 under the Act or any
similar rule that may be adopted by the Commission, (v) the date on which such
Note or Exchange is transferred to the public pursuant to Rule 144 under the Act
or (vi) such Note or Exchange Note, as the case may be, ceases to be outstanding
for purposes of the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trustee" means the trustee with respect to the Notes or
Exchange Notes, as applicable, under the Indenture.
2. Registered Exchange Offer; Resales of Exchange Notes by
Participating Broker-Dealers; Private Exchange. (a) The Company and the
Guarantors shall prepare and, not later than 150 days from the Issue Date (or,
if such 150th day is not a Business Day, by the first
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Business Day thereafter), shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer (the date
of such filing hereinafter referred to as the "Filing Date"). The Company and
the Guarantors shall use their reasonable best efforts (i) to cause the Exchange
Offer Registration Statement to be declared effective under the Act within 195
days from the Issue Date (or, if such 195th day is not a Business Day, by the
first Business Day thereafter), and (ii) to Consummate the Registered Exchange
Offer within 225 days from the Issue Date (or, if such 225th day is not a
Business Day, by the first Business Day thereafter).
(b) The objective of such Registered Exchange Offer is to
enable each Holder electing to exchange Transfer Restricted Notes for Exchange
Notes (assuming that such Holder (x) is not an "affiliate" of the Company or the
Guarantors within the meaning of the Act, (y) is not a broker-dealer that
acquired the Transfer Restricted Notes in a transaction other than as a part of
its market-making or other trading activities and (z) if such Holder is not a
broker-dealer, acquires the Exchange Notes in the ordinary course of such
Holder's business, is not participating in the distribution of the Exchange
Notes and has no arrangements or intentions with any person to make a
distribution of the Exchange Notes) to resell such Exchange Notes from and after
their receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States. Each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company and the
Guarantors that at the time of the Consummation of the Registered Exchange Offer
each of the items listed in subsections (x), (y) and (z) of this Section 2(b) is
true.
(c) In connection with the Registered Exchange Offer, the
Company and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for acceptance
for not less than 30 Business Days (or longer if required by applicable
law) after the date notice thereof is mailed to Holders;
(iii) permit Holders to withdraw tendered Notes at any time
prior to 5:00 p.m. New York City time on the last Business Day on which
the Registered Exchange Offer shall remain open;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan, The City
of New York; and
(v) comply in all material respects with all applicable laws
relating to the Registered Exchange Offer.
(d) The Company and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any six-month period or an
aggregate of 60 days in any twelve-month period for valid business reasons (not
including avoidance of their obligations
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hereunder) to avoid premature public disclosure of a pending corporate
transaction, including pending acquisitions or divestitures of assets, mergers
and combinations and similar events; provided that (i) the Company and the
Guarantors promptly thereafter comply with the requirements of Section 5(k)
hereof, if applicable; and (ii) the period during which the Registration
Statement is required to be effective and usable shall be extended by the number
of days during which such Registration Statement was not effective or usable
pursuant to the foregoing provisions.
(e) As soon as practicable after the Consummation of the
Registered Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all the Notes validly tendered and not
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all of the Notes
so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder Exchange Notes equal in principal amount to the Transfer
Restricted Notes of such Holder so accepted for exchange.
(f) The Initial Purchaser, the Company and the Guarantors
acknowledge that, pursuant to interpretations by the staff of the Commission of
Section 5 of the Act, and in the absence of an applicable exemption therefrom,
each Participating Broker-Dealer is required to deliver a Prospectus in
connection with a sale of any Exchange Notes received by such Participating
Broker-Dealer pursuant to the Registered Exchange Offer in exchange for Transfer
Restricted Notes acquired for its own account as a result of market-making
activities or other trading activities. Accordingly, the Company and the
Guarantors will allow Participating Broker-Dealers and other persons, if any,
with similar prospectus delivery requirements to use the Prospectus contained in
the Exchange Offer Registration Statement during the Exchange Offer Registration
Period in connection with the resale of such Exchange Notes and shall:
(i) include the information set forth in (a) Annex A hereto on
the cover of the Prospectus forming a part of the Exchange Offer
Registration Statement; (b) Annex B hereto in the forepart of the
Exchange Offer Registration Statement in a section setting forth
details of the Registered Exchange Offer; (c) Annex C hereto in the
plan of distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and (d) Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer; and
(ii) use reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective (subject to Section 2(d))
under the Act during the Exchange Offer Registration Period for
delivery of the Prospectus included therein by Participating
Broker-Dealers in connection with sales of Exchange Notes received
pursuant to the Registered Exchange Offer, as contemplated by Section
5(h) below.
(g) In the event that the Initial Purchaser determines that it
is not eligible to participate in the Registered Exchange Offer with respect to
the exchange of Transfer Restricted
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Notes constituting any portion of an unsold allotment, upon the effectiveness of
the Shelf Registration Statement as contemplated by Section 3 hereof and at the
request of the Initial Purchaser, the Company and the Guarantors shall issue and
deliver to the Initial Purchaser, or to the party purchasing Transfer Restricted
Notes registered under the Shelf Registration Statement from the Initial
Purchaser, in exchange for such Transfer Restricted Notes, a like principal
amount of Exchange Notes to the extent permitted by applicable law (the "Private
Exchange Notes"). The Company and the Guarantors shall use their reasonable best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for
such Private Exchange Notes as for Exchange Notes issued pursuant to the
Registered Exchange Offer.
3. Shelf Registration. (a) If (i) the Company and the
Guarantors are not permitted to file the Exchange Offer Registration Statement
or to Consummate the Registered Exchange Offer because the Registered Exchange
Offer is not permitted by applicable law or Commission policy, (ii) for any
other reason the Registered Exchange Offer is not Consummated within 225 days
(or if such 225th day is not a Business Day, by the first Business Day
thereafter) of the Issue Date, (iii) the Initial Purchaser so requests with
respect to Notes acquired by it directly from the Company and the Guarantors,
which have not been resold on or prior to the 30th day (or if such 30th day is
not a Business Day, by the first Business Day thereafter) following the
Consummation of the Registered Exchange Offer, (iv) any Holder notifies the
Company and the Guarantors on or prior to the 30th day (or if such 30th day is
not a Business Day, by the first Business Day thereafter) following the
Consummation of the Registered Exchange Offer that (A) such Holder is not
eligible to participate in the Registered Exchange Offer, due to applicable law
or Commission policy, (B) the Exchange Notes such Holder would receive would not
be freely tradable, (C) such Holder is a Participating Broker-Dealer that cannot
publicly resell the Exchange Notes that it acquires in the Registered Exchange
Offer without delivering a Prospectus and the Prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available for
resales following the completion of the Registered Exchange Offer, or (D) the
Holder is a broker-dealer and owns Notes it has not exchanged and that it
acquired directly from the Company, one of its Affiliates or the Guarantors, or
(v) in the case where the Initial Purchaser participates in the Registered
Exchange Offer or acquires Private Exchange Notes pursuant to Section 2(g)
hereof, the Initial Purchaser does not receive freely tradable Exchange Notes in
exchange for Notes constituting any portion of an unsold allotment and the
Initial Purchaser notifies the Company and the Guarantors on or prior to the
30th day following the Consummation of the Registered Exchange Offer (it being
understood that, for purposes of this Section 3, (x) the requirement that the
Initial Purchaser deliver a Prospectus containing the information required by
Items 507 and/or 508 of Regulation S-K under the Act in connection with sales of
Exchange Notes acquired in exchange for such Transfer Restricted Notes shall
result in such Exchange Notes being not "freely tradable" and (y) the
requirement that a Participating Broker-Dealer deliver a Prospectus in
connection with sales of Exchange Notes acquired in the Registered Exchange
Offer in exchange for Transfer Restricted Notes acquired as a result of
market-making activities or other trading activities shall result in such
Exchange Notes being not "freely tradable"), the following provisions shall
apply:
(b) The Company and the Guarantors shall use their reasonable
best efforts to prepare and file with the Commission a Shelf Registration
Statement prior to the 45th day (or if such 45th day is not a Business Day, by
the first Business Day thereafter) following the earliest to occur of (i) the
date on which the Company and the Guarantors determine that they are not
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permitted to file the Exchange Offer Registration Statement or to Consummate the
Exchange Offer; (ii) 45 days (or if such 45th day is not a Business Day, by the
first Business Day thereafter) after the Exchange Offer Registration Statement
has been declared effective if the Registered Exchange Offer has not been
Consummated by such date and (iii) the date notice is given pursuant to Section
(a)(iii), (iv) or (v) above (or if either such 30th day is not a Business Day,
by the first Business Day thereafter), and shall use their reasonable best
efforts to cause the Shelf Registration Statement to be declared effective by
the Commission within 60 days after such filing (or if such 60th day is not a
Business Day, by the first Business Day thereafter). With respect to Exchange
Notes received by the Initial Purchaser in exchange for Notes constituting any
portion of an unsold allotment, the Company and the Guarantors may, if permitted
by current interpretations by the Commission's staff, file a post-effective
amendment to the Exchange Offer Registration Statement containing the
information required by Regulation S-K Items 507 and/or 508, as applicable, in
satisfaction of their obligations under this paragraph (b) with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(c) The Company and the Guarantors shall use their reasonable
best efforts to keep such Shelf Registration Statement continuously effective
(subject to Section 3(d)) in order to permit the Prospectus forming a part
thereof to be usable by Holders until the earliest of (i) such time as the Notes
or Exchange Notes covered by the Shelf Registration Statement can be sold
without any limitations under clauses (c), (e), (f) and (h) of Rule 144 or
similar rule adopted by the Commission, (ii) two years from the date the Shelf
Registration Statement has been declared effective exclusive of any period
during which any stop order shall be in effect suspending the effectiveness of
the Shelf Registration Statement or during which the Company has suspended the
use of the Prospectus contained therein pursuant to Section 3(d) and (iii) such
date as of which all the Transfer Restricted Notes have been sold pursuant to
the Shelf Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company and the Guarantors shall be deemed not
to have used their reasonable best efforts to keep the Shelf Registration
Statement effective during the Shelf Registration Period if it voluntarily takes
any action that would result in Holders of Transfer Restricted Notes covered
thereby not being able to offer and sell such notes during that period, unless
such action is (x) required by applicable law or (y) pursuant to Section 3(d)
hereof, and, in either case, so long as the Company and the Guarantors promptly
thereafter comply with the requirements of Section 5(k) hereof, if applicable.
(d) The Company and the Guarantors may suspend the use of the
Prospectus for a period not to exceed 30 days in any six-month period or an
aggregate of 60 days in any twelve-month period for valid business reasons (not
including avoidance of their obligations hereunder) or to avoid premature public
disclosure of a pending corporate transaction, including pending acquisitions or
divestitures of assets, mergers and combinations and similar events; provided
that (i) the Company and the Guarantors promptly thereafter comply with the
requirements of Section 5(k) hereof, if applicable; and (ii) the period during
which the Registration Statement is required to be effective and usable shall be
extended by the number of days during which such Registration Statement was not
effective or usable pursuant to the foregoing provisions.
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(e) No Holder of Transfer Restricted Notes may include any of
its Transfer Restricted Notes in any Shelf Registration Statement pursuant to
this Agreement unless and until such Holder furnishes to the Company and the
Guarantors in writing, within 15 days after receipt of a request therefor, such
information as the Company and the Guarantors may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Notes shall be
entitled to Additional Interest pursuant to Section 4 hereof unless and until
such Holder shall have provided all such reasonably requested information. Each
Holder of Transfer Restricted Notes as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company and the Guarantors
all information required to be disclosed in order to make the information
previously furnished to the Company and the Guarantors by such Holder not
misleading.
4. Additional Interest. (a) The parties hereto agree that
Holders of Transfer Restricted Notes will suffer damages if the Company or the
Guarantors fails to perform their obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of such
damages. Accordingly, in the event that (i) the applicable Registration
Statement is not filed with the Commission on or prior to the date specified
herein for such filing, (ii) the applicable Registration Statement has not been
declared effective by the Commission on or prior to the date specified herein
for such effectiveness after such obligation arises, (iii) if the Registered
Exchange Offer is required to be Consummated hereunder, the Registered Exchange
Offer has not been Consummated by the Company and the Guarantors within the time
period set forth in Section 2(a) hereof or (iv) prior to the end of the Exchange
Offer Registration Period or the Shelf Registration Period, the Commission shall
have issued a stop order suspending the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement, as the case may be,
or proceedings have been initiated with respect to the Registration Statement
under Section 8(d) or 8(e) of the Act, (each such event referred to in clauses
(i) through (iv), a "Registration Default"), then additional interest with
respect to the Transfer Restricted Notes ("Additional Interest") will accrue
with respect to the first 90-day period immediately following the occurrence of
such Registration Default in an amount equal to 0.5 % per annum per $1,000
principal amount of such Notes and will increase by an additional 0.5% per annum
per $1,000 principal amount of such Notes for each subsequent 90-day period
until such Registration Default has been cured, up to an aggregate maximum
amount of Additional Interest of 1.0% per annum per $1,000 principal amount of
Notes for all Registration Defaults. Following the cure of a Registration
Default, the accrual of Additional Interest with respect to such Registration
Default will cease and upon the cure of all Registration Defaults the accrual of
all Additional Interest will cease and the interest rate on the Notes shall
thereafter be the coupon rate. Notwithstanding anything to the contrary in this
Section 4(a), the Company and the Guarantors shall not be required to pay
Additional Interest to a Holder of Restricted Transfer Notes if such Holder
failed to comply with its obligations to make the representations set forth in
the second sentence of Section 2(b) or provide the requested information
pursuant to Section 3(e).
(b) The Company shall notify the Trustee and paying agent
under the Indenture (or the trustee and paying agent under such other indenture
under which any Transfer Restricted Notes are issued) immediately upon the
happening of each and every Registration Default. The Company and the Guarantors
shall pay the Additional Interest due on the Transfer Restricted Notes by
depositing with the paying agent (which shall not be the Company or the
Guarantors for these purposes) for the Transfer Restricted Notes, in trust, for
the benefit of the
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Holders thereof, prior to 11:00 a.m. on the next interest payment date specified
in the Indenture (or such other indenture), sums sufficient to pay the
Additional Interest then due. The Additional Interest due shall be payable on
each interest payment date specified by the Indenture (or such other indenture)
to the record holders entitled to receive the interest payment to be made on
such date. Each obligation to pay Additional Interest shall be deemed to accrue
from and include the date of the applicable Registration Default to, but
excluding, the relevant interest payment date.
(c) The parties hereto agree that the Additional Interest
provided for in this Section 4 constitutes a reasonable estimate of the damages
that will be suffered by Holders of Transfer Restricted Notes by reason of the
happening of any Registration Default and are intended to and shall constitute
the sole remedy for damages that will be suffered by the Holders of the Transfer
Restricted Notes by reason of any of the failures listed in Section 4(a).
(d) All Additional Interest which has accrued pursuant to this
Section 4 and which is outstanding with respect to any Transfer Restricted Note
shall remain outstanding until paid in full (notwithstanding termination of this
Agreement, Consummation of the Registered Exchange Offer or cessation of
effectiveness of the Shelf Registration Period).
5. Registration Procedures. In connection with any Exchange
Offer Registration Statement, and, to the extent applicable, any Shelf
Registration Statement, the following provisions shall apply:
(a) The Company and the Guarantors shall furnish to the
Initial Purchaser, prior to the filing thereof with the Commission, a
copy of any Registration Statement, and each amendment thereof and each
amendment or supplement, if any, to the Prospectus included therein and
shall reflect in each such document, when so filed with the Commission,
such comments as the Initial Purchaser reasonably may propose.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment
thereto and any Prospectus contained therein and any
amendment or supplement thereto complies in all material
respects with the Act;
(ii) any Registration Statement and any amendment
thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and
(iii) any Prospectus forming part of any Registration
Statement, including any amendment or supplement to such
Prospectus, does not include an untrue statement of a material
fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading;
provided that no representation or agreement is made hereby with
respect to information with respect to the Initial Purchaser, any
Underwriter or any Holder required to be included in any Registration
Statement or Prospectus pursuant to the Act or provided by
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the Initial Purchaser, any Holder or any Underwriter specifically for
inclusion in any Registration Statement or Prospectus.
(c) (1) The Company and the Guarantors shall advise the
Initial Purchaser and, in the case of a Shelf Registration Statement,
the Holders of Transfer Restricted Notes covered thereby, and, if
requested by the Initial Purchaser or any such Holder, confirm such
advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus
included therein or for additional information.
(2) The Company and the Guarantors shall advise the Initial
Purchaser and, in the case of a Shelf Registration Statement, the
Holders of Transfer Restricted Notes covered thereby, and, in the case
of an Exchange Offer Registration Statement, any Participating
Broker-Dealer that has provided in writing to the Company a telephone
or facsimile number and address for notices, and, if requested by the
Initial Purchaser or any such Holder or Participating Broker-Dealer,
confirm such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(ii) of the receipt by the Company or the Guarantors
of any notification with respect to the suspension of the
qualification of the Transfer Restricted Notes included in any
Registration Statement for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
and
(iii) of the happening of any event that requires the
making of any changes in the Registration Statement or the
Prospectus so that, as of the date of the issuance of such
advice, the statements therein are not misleading and do not
omit to state a material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
were made) not misleading (which advice shall be accompanied
by an instruction to suspend the use of the Prospectus until
the requisite changes have been made).
(d) The Company and the Guarantors shall use their reasonable
best efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible
time.
(e) The Company and the Guarantors shall furnish to each
Holder of Transfer Restricted Notes included within the coverage of any
Shelf Registration Statement,
11
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including financial
statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those incorporated by reference).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Transfer Restricted
Notes included within the coverage of any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including any
preliminary Prospectus) included in such Shelf Registration Statement
and any amendment or supplement thereto as such Holder may reasonably
request; and the Company and the Guarantors consent to the use of the
Prospectus (including any preliminary prospectus) or any amendment or
supplement thereto by each of the selling Holders of Transfer
Restricted Notes in connection with the offering and sale of the
Transfer Restricted Notes covered by the Prospectus or any amendment or
supplement thereto.
(g) The Company and the Guarantors shall furnish to each
Participating Broker-Dealer that so requests, without charge, at least
one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, any documents incorporated by reference therein and, if the
Participating Broker-Dealer so requests in writing, all exhibits
thereto (including those incorporated by reference).
(h) The Company and the Guarantors shall, during the Exchange
Offer Registration Period and pursuant to the requirements of the Act
for the resale of the Exchange Notes during the period in which a
prospectus is required to be delivered under the Act (including any
Commission no-action letters relating to the Registered Exchange
Offer), deliver to each Participating Broker-Dealer, without charge, as
many copies of the Prospectus (including any preliminary Prospectus)
included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as such Participating Broker-Dealer may
reasonably request; and the Company and the Guarantors consent to the
use of the Prospectus (including any preliminary prospectus) or any
amendment or supplement thereto by any such Participating Broker-Dealer
in connection with the offering and sale of the Exchange Notes, as
provided in Section 2(f) above.
(i) Prior to the Registered Exchange Offer or any other
offering of Transfer Restricted Notes pursuant to any Registration
Statement, the Company and the Guarantors shall use reasonable best
efforts to register, qualify or cooperate with the Holders of Transfer
Restricted Notes included therein and their respective counsel in
connection with the registration or qualification of such Transfer
Restricted Notes for offer and sale under the securities or blue sky
laws of such states as any such Holders reasonably request in writing
and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Transfer
Restricted Notes covered by such Registration Statement; provided,
however, neither the Company nor the Guarantors will be required to
qualify generally to do business in any jurisdiction in which it is not
then so qualified, to file any general consent to service of process or
to
12
take any action which would subject it to general service of process
or to taxation in any such jurisdiction where it is not then so
subject.
(j) The Company and the Guarantors shall cooperate with the
Holders to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Notes to be sold pursuant
to any Registration Statement free of any restrictive legends and in
denominations and registered in such names as Holders may appropriately
request prior to sales of Transfer Restricted Notes pursuant to such
Registration Statement.
(k) Upon the occurrence of any event contemplated by Section
2(d), 3(d) or paragraph (c)(2)(iii) of this Section 5, the Company and
the Guarantors shall promptly prepare and file a post-effective
amendment to any Registration Statement or an amendment or supplement
to the related Prospectus or any other required document so that, as
thereafter delivered to purchasers of the Transfer Restricted Notes
included therein, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(l) The Company and the Guarantors shall use their reasonable
best efforts to cause The Depository Trust Company ("DTC") on the first
Business Day following the effective date of any Registration Statement
hereunder or as soon as possible thereafter to remove (i) from any
existing CUSIP number assigned to the Transfer Restricted Notes or
Exchange Notes, as the case may be, any designation indicating that
such notes are "restricted securities," which efforts shall include
delivery to DTC of a letter executed by the Company substantially in
the form of Annex E hereto and (ii) any other stop or restriction on
DTC's system with respect to the Transfer Restricted Notes or Exchange
Notes, as the case may be. In the event the Company and the Guarantors
are unable to cause DTC to take actions described in the immediately
preceding sentence, the Company and the Guarantors shall take such
actions as the Initial Purchaser may reasonably request to provide, as
soon as practicable, a new CUSIP (if not already obtained) number for
the Transfer Restricted Notes or Exchange Notes registered under such
Registration Statement and to cause such CUSIP number to be assigned to
the Transfer Restricted Notes or Exchange Notes (or to the maximum
aggregate principal amount of the securities to which such number may
be assigned).
(m) The Company and the Guarantors shall use their reasonable
best efforts to comply with all applicable rules and regulations of the
Commission and shall make generally available to the security holders
as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions
of Section 11(a) of the Act and Rule 158 promulgated thereunder.
(n) The Company and the Guarantors shall use reasonable best
efforts to cause the Indenture to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each Holder of
Transfer Restricted Notes to be sold pursuant to any Shelf Registration
Statement to furnish to the
13
Company and the Guarantors such information regarding the Holder and
the distribution of such Transfer Restricted Notes as may, from time
to time, be reasonably required by the Act, and the obligations of the
Company and the Guarantors to any Holder hereunder shall be expressly
conditioned on the compliance of such Holder with such request.
(p) The Company and the Guarantors shall, if requested,
promptly incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement (i) such information as the
Majority Holders or, if the Transfer Restricted Notes are being sold in
an underwritten offering, as the Managing Underwriters and the Majority
Holders, reasonably provide to the Company or the Guarantors in writing
for inclusion in the Shelf Registration Statement, or Prospectus, and
(ii) such information as a Holder may reasonably provide from time to
time to the Company or the Guarantors in writing for inclusion in a
Prospectus or any Shelf Registration Statement, in the case of clause
(i) or (ii) above, concerning such Holder and/or underwriter and the
distribution of such Holder's Transfer Restricted Notes and, in either
case, shall make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after being notified in
writing of the matters to be incorporated in such Prospectus supplement
or post-effective amendment.
(q) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall enter into such agreements (including
underwriting agreements) and take all other customary and appropriate
actions as may be reasonably requested in order to expedite or
facilitate the registration or the disposition of any Transfer
Restricted Notes, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable than those set forth in
Section 8 (or such other provisions and procedures reasonably
acceptable to the Majority Holders and the Managing Underwriters, if
any, with respect to all parties to be indemnified pursuant to Section
8).
(r) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall:
(i) make reasonably available for inspection by the
Holders of Transfer Restricted Notes to be registered
thereunder, any Managing Underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
any attorney, accountant or other agent retained by the
Holders or any such Managing Underwriter, all relevant
financial and other records, pertinent corporate documents and
properties of the Company and any of its subsidiaries
reasonably requested by such persons;
(ii) cause the Company's and the Guarantors'
officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any such
Managing Underwriter, attorney, accountant or agent in
connection with any such Registration Statement as is
customary for similar due diligence examinations; provided,
however, that any information that is designated in writing by
the Company and the Guarantors as confidential at the time of
delivery of such information shall be kept confidential by the
Holders or any such Managing Underwriter, attorney, accountant
or agent, unless (x) disclosure thereof is made in connection
with a court proceeding or required by law; provided that each
Holder and any such
14
Managing Underwriter, attorney, accountant or agent will,
upon learning that disclosure of such information is sought
in a court proceeding or required by law, give notice to the
Company and the Guarantors with enough time to allow the
Company and the Guarantors to undertake appropriate action
to prevent disclosure at the Company's and the Guarantors'
sole expense, or (y) such information has previously been
made or becomes available to the public generally through
the Company, the Guarantors or through a third party without
an accompanying obligation of confidentiality or failure to
safeguard such disclosure;
(iii) make such representations and warranties to the
Holders of Transfer Restricted Notes registered thereunder and
the Managing Underwriters, if any, in form, substance and
scope as are customarily made by the Company and the
Guarantors to Managing Underwriters and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and
the Guarantors and updates thereof (which counsel and
opinions, in form, scope and substance, shall be reasonably
satisfactory to the Managing Underwriters, if any) addressed
to each selling Holder and the Managing Underwriters, if any,
covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as
may be reasonably requested by such Holders and Managing
Underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the
Company and the Guarantors (and, if necessary, any other
independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for
which financial statements and financial data are, or are
required to be, included in the Registration Statement),
addressed to each selling Holder of the Transfer Restricted
Notes covered by such Shelf Registration Statement (provided
such Holder furnishes the accountants with such
representations as the accountants customarily require in
similar situations) and the Managing Underwriters, if any, in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings; and
(vi) deliver such documents and certificates as may
be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 5(i) and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company and the Guarantors.
The foregoing actions set forth in this Section 5(r) shall be
performed at (i) the effectiveness of such Shelf Registration Statement
and each post-effective amendment
15
thereto and (ii) each closing under any underwriting or similar
agreement as and to the extent required thereunder.
(s) The Company and the Guarantors shall, if and to the extent
required under the Act and/or the Trust Indenture Act and the rules and
regulations thereunder in order to register the Note Guarantee under
the Act and qualify the Indenture under the Trust Indenture Act, cause
each guarantor, if any, to sign any Registration Statement and take all
other action necessary to register the Note Guarantee under the
applicable Registration Statement.
(t) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Registered Exchange Offer is
permitted by applicable law, the Company and the Guarantors hereby
agree to seek a no-action letter or other favorable decision from the
Securities Exchange Commission (the "Commission") allowing the Company
and the Guarantors to consummate a Registered Exchange Offer for such
Transfer Restricted Notes. The Company and the Guarantors each hereby
agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Company and the
Guarantors each hereby agrees, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to the
Commission staff an analysis prepared by counsel to the Company setting
forth the legal bases, if any, upon which such counsel has concluded
that such a Registered Exchange Offer should be permitted and (C)
diligently pursue a favorable resolution by the Commission staff of
such submission.
6. Registration Expenses. The Company and the Guarantors shall
bear all reasonable fees and expenses (including the reasonable fees and
expenses, if any, of Shearman & Sterling, counsel for the Initial Purchaser,
incurred in connection with the Registered Exchange Offer) incurred in
connection with the performance of their obligations under Sections 2, 3, 4 and
5 hereof (other than brokers', dealers' and underwriters' discounts and
commissions and brokers', dealers' and underwriters' counsel fees) and, in
connection with the Shelf Registration Statement, shall reimburse the Holders
for the reasonable fees and disbursements of Shearman & Sterling to act as
counsel for the Holders in connection therewith.
7. Rules 144 and 144A. The Company shall use reasonable best
efforts to file the reports required to be filed by it under the Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any Holder of Transfer
Restricted Notes, make publicly available the applicable information necessary
to permit sales of their securities pursuant to Rules 144 and 144A (or any
successor rule adopted by the Commission). The Company covenants that it will
take such further action as any Holder of Transfer Restricted Notes may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided by Rules 144 and
144A (including the requirements of Rule 144A(d)(4) if applicable). The Company
will provide a copy of this Agreement to prospective purchasers of Transfer
Restricted Notes identified to the Company by the Initial Purchaser upon
request. Upon the request of any Holder of Transfer
16
Restricted Notes, the Company shall deliver to such Holder a written statement
as to whether it has complied with such requirements.
8. Indemnification and Contribution. (a) (i) In connection
with any Registration Statement, the Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder of Transfer
Restricted Notes covered thereby, the directors, officers, employees and agents
of each such Holder and each person who controls any such Holder within the
meaning of either the Act or the Exchange Act against any and all losses,
claims, damages or liabilities, joint or several, to which they or any of them
may become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement as originally filed or in any
amendment thereof, in any preliminary Prospectus or Prospectus or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agree to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company and the Guarantors will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
(A) any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to the Holder furnished to the Company and the Guarantors
by or on behalf of any such Holder specifically for inclusion therein, or (B)
use of a Registration Statement or the related Prospectus during a period when a
stop order has been issued in respect of such Registration Statement or any
proceedings for that purpose have been initiated or use of a Prospectus when use
of such Prospectus has been suspended pursuant to Section 2(d), 3(d) or 5(c)(2);
provided that in each case, that such Holder received prior notice of such stop
order, initiation of proceedings or suspension; and such Holder is required to
but does not deliver a Prospectus or the then-current Prospectus. This indemnity
agreement will be in addition to any liability that the Company and the
Guarantors may otherwise have.
(ii) The Company and the Guarantors also agree to indemnify or
contribute to Losses, as provided in Section 8(d), of any Managing Underwriters
of Transfer Restricted Notes registered under a Registration Statement, their
officers and directors and each person who controls such Managing Underwriters
on substantially the same basis as that of the indemnification of the selling
Holders provided in this Section 8(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in
Section 5(q) hereof.
(b) Each Holder of Transfer Restricted Notes covered by a
Registration Statement severally agrees to indemnify and hold harmless the
Company and the Guarantors and their respective directors, officers, employees
and agents and each person who controls either of the Company or the Guarantors
within the meaning of either the Act or the Exchange Act to the same extent as
the foregoing indemnity from the Company and the Guarantors to each such Holder,
but only with reference to written information relating to such Holder furnished
to the Company and the Guarantors by or on behalf of such Holder specifically
for inclusion in the
17
documents referred to in the foregoing indemnity, or improper use by the Holder
of a Registration Statement or the related Prospectus during a period when a
stop order has been issued in respect of such Registration Statement or any
proceedings for that purpose have been initiated or use of a Prospectus when use
of such Prospectus has been suspended pursuant to Section 2(d), 3(d) or 5(c)(2);
provided that in each case, that such Holder received prior notice of such stop
order, initiation of proceedings or suspension. This indemnity agreement will be
in addition to any liability which any such Holder or person may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified parties
collectively shall have the right to employ one separate counsel (in addition to
local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel (and local counsel) if (i) the use of
counsel chosen by the indemnifying party to represent the indemnified party
would present such counsel with a conflict of interest, (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded, based on the advice of outside counsel, that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, (iii)
the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall have authorized the indemnified party to employ separate counsel at the
expense of the indemnifying party; provided further, that the indemnifying party
shall not be responsible for the fees and expenses of more than one separate
counsel (together with the appropriate local counsel) representing all the
indemnified parties under paragraph (a) or paragraph (b) above. An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason,
18
then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall have a joint and several obligation to contribute to
the aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in such
proportion as is appropriate to reflect the relative benefits received by such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, from the Registration Statement which resulted in such Losses. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the indemnifying party and the indemnified party shall contribute in
such proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such Holder or
such other indemnified person, as the case may be, on the other, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The relative benefits received by
the Company and the Guarantors on the one hand and the Holders on the other with
respect to the offering and such sale shall be deemed to be in the same
proportion as the sum of the net proceeds from the original issuance of the
Notes received by the Company, on the one hand, bear to the total proceeds
received by the Holder with respect to its sale of Transfer Restricted
Securities, on the other. Benefits received by any Managing Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding any other provision of this Section 8(d), the
Holders of the Transfer Restricted Notes shall in no case be required to
contribute any amount in excess of the amount by which the net proceeds received
by such Holders from the sale of the Transfer Restricted Notes pursuant to a
Registration Statement exceeds the amount of damages which such Holders have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and in no case shall any Managing
Underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the Transfer Restricted Notes purchased by such
Managing Underwriter under the Registration Statement which resulted in such
Losses pursuant to the terms of this Agreement. The parties agree that it would
not be just and equitable if contribution were determined by pro rata allocation
or any other method of allocation which does not take into account the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an indemnified party within the meaning
of either the Act or the Exchange Act and each director, officer, employee and
agent of such indemnified party shall have the same rights to contribution as
such indemnified party, and each person who controls the Company or the
Guarantors within the
19
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of the Company or the Guarantors shall have the same rights
to contribution as the Company and the Guarantors, subject in each case to the
applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section 8 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder,
the Company, the Guarantors or any of the officers, directors or controlling
persons referred to in Section 8 hereof, and will survive the sale by a Holder
of Transfer Restricted Notes covered by a Registration Statement.
9. Underwritten Registrations.
If any of the Transfer Restricted Notes covered by any Shelf
Registration statement are to be sold in an underwritten offering, the Managing
Underwriter that will administer the offering will be selected by the Majority
Holders of such Transfer Restricted Notes included in such offering, subject to
the consent of the Company not to be unreasonably withheld; it being expressly
agreed that the Initial Purchaser is an acceptable Managing Underwriter to the
Company and such Holders shall be responsible for all underwriting commissions
and discounts in connection therewith.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Notes on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
10. Miscellaneous. (a) No Inconsistent Agreements. The Company
and the Guarantors have not, as of the date hereof, entered into nor shall they,
on or after the date hereof, enter into any agreement that is inconsistent with
the rights granted to the Holders herein 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, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company and the Guarantors have
obtained the written consent of the Majority Holders; provided that additional
Guarantors may become parties to this Agreement pursuant to Section 10(h) hereof
by executing an amendment hereto, which need not be signed by any of the other
parties hereto to become effective. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of the Holders whose securities are being sold
pursuant to an Exchange Offer Registration Statement or a Shelf Registration
Statement and that does not directly or indirectly affect, impair, limit or
compromise the rights of other Holders may be given by Holders of at least a
majority in aggregate principal amount of the applicable notes being sold
pursuant to such registration statement.
20
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to the Initial Purchaser, as follows:
Wachovia Capital Markets, LLC
One Wachovia Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: High Yield Origination
(ii) if to any other Holder, at the most current address given
by such Holder to the Company and the Guarantors in accordance with the
provisions of this Section 10(c), which address initially is, with
respect to each Holder, the address of such Holder maintained by the
registrar under the Indenture, with a copy in like manner to the
Initial Purchaser; and
(iii) if to the Company or the Guarantors, as follows:
Armor Holdings, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇, P.C.
1350 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
All such notices and communications shall be deemed to have
been duly given when received, if delivered by hand or air courier, and when
sent, if sent by first-class mail, telex or telecopier.
The Company and the Guarantors by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or the Guarantors thereto, subsequent Holders. The Company and the
Guarantors hereby agree to extend the benefits of this Agreement to any Holder
that acquired the applicable Notes from a Holder and any such Holder may
specifically enforce the provisions of this Agreement as if an original party
hereto.
21
(e) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(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 and Consent to Jurisdiction. This agreement
shall be governed by and construed in accordance with the laws of the State of
New York. The Company and the Guarantors (x) submit to the nonexclusive
jurisdiction of the courts of the State of New York and of the United States
sitting in the Borough of Manhattan in respect of any action, claim or
proceeding ("Proceeding") arising out of or relating to this Agreement or the
transactions contemplated hereby, (y) irrevocably waive, to the fullest extent
permitted by applicable law, any objection that it may now or hereafter have to
the laying of venue of any Proceeding in the Supreme Court of the State of New
York, County of New York, or the United States District Court for the Southern
District of New York, and any claim that any Proceeding in any such court has
been brought in an inconvenient forum, and (z) agree that any service of process
or other legal summons in connection with any Proceeding may be served on it by
mailing a copy thereof by registered mail, or a form of mail substantially
equivalent thereto, postage prepaid, addressed to the served party at its
address as provided for in Section 10(c). Nothing in this section shall affect
the right of the parties to serve process in any other manner permitted by law.
(h) Obligations of New Subsidiary Guarantors. If any person
becomes a Subsidiary Guarantor (as defined in the Indenture) after the date
hereof and while the Company has continuing obligations under this Agreement,
the Company will cause such person to become a party hereto including for
purposes of registration obligations, the guarantee of Additional Interest on a
joint and several basis and indemnification and contribution pursuant to Section
8.
(i) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(j) Notes Held by the Company, Etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Transfer
Restricted Notes or Exchange Notes is required hereunder, Transfer Restricted
Notes or Exchange Notes held by the Company, the Guarantors or any of their
respective Affiliates (other than subsequent Holders of Transfer Restricted
Notes or Exchange Notes if such subsequent Holders are deemed to be Affiliates
solely by reason of their holdings of such Notes) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
22
Please confirm that the foregoing correctly sets forth the
agreement between and among the Company, the Guarantors and the Initial
Purchaser.
Very truly yours,
ARMOR HOLDINGS, INC.
By:
-----------------------------------
Name:
Title:
SUBSIDIARY GUARANTORS
911EP, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
AHI PROPERTIES I, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR BRANDS, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR HOLDINGS FORENSICS, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR HOLDINGS GP, LLC,
a Delaware company
By:
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR HOLDINGS LP, LLC,
a Delaware company
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR HOLDINGS MOBILE SECURITY, L.L.C.,
a Delaware company
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR HOLDINGS PAYROLL SERVICES, LLC,
a Delaware company
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Manager
ARMOR HOLDINGS PRODUCTS, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR HOLDINGS PROPERTIES, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
ARMOR SAFETY PRODUCTS COMPANY,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
B-SQUARE, INC.,
a Texas corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BREAK-FREE ARMOR CORP.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
BREAK-FREE, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CASCO INTERNATIONAL, INC.,
a New Hampshire corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
DEFENSE TECHNOLOGY CORPORATION OF AMERICA,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
INDENTICATOR, INC.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MONADNOCK LIFETIME PRODUCTS, INC. (DE),
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MONADNOCK LIFETIME PRODUCTS, INC. (NH),
a New Hampshire corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
MONADNOCK POLICE TRAINING COUNCIL, INC.,
a New Hampshire corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NAP PROPERTIES, LTD.,
a California limited partnership
By: NAP PROPERTY MANAGERS, LLC,
its General Partner
By: ARMOR HOLDINGS PROPERTIES, INC.,
its Managing Member
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NAP PROPERTY MANAGERS, LLC,
a California company
By: ARMOR HOLDINGS PROPERTIES, INC.,
its Managing Member
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ARMORING COMPANY,
L.L.C.
a Delaware company
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
PRO-TECH ARMORED PRODUCTS OF MASSACHUSETTS,
INC.,
a Massachusetts corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
RAMTECH DEVELOPMENT CORP.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SAFARI LAND LTD, INC.,
a California corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SAFARILAND GOVERNMENT SALES, INC.,
a California corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
SPEEDFEED ACQUISITION CORP.,
a Delaware corporation
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE O'GARA COMPANY,
an Ohio company
By:
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
The foregoing Agreement is hereby
acknowledged and accepted as of
the date first written above.
WACHOVIA CAPITAL MARKETS, LLC
By:
-----------------------------------------
Name:
Title:
SCHEDULE 1
----------
SUBSIDIARY GUARANTORS
---------------------------------------------------------------------------------------------------------------------
Company Jurisdiction of Formation
---------------------------------------------------------------------------------------------------------------------
1 911EP, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
2 AHI Properties I, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
3 Armor Brands, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
4 Armor Holdings Forensics, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
5 Armor Holdings GP, LLC Delaware
---------------------------------------------------------------------------------------------------------------------
6 Armor Holdings LP, LLC Delaware
---------------------------------------------------------------------------------------------------------------------
7 Armor Holdings Mobile Security, L.L.C. Delaware
---------------------------------------------------------------------------------------------------------------------
8 Armor Holdings Payroll Services, LLC Delaware
---------------------------------------------------------------------------------------------------------------------
9 Armor Holdings Products, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
10 Armor Holdings Properties, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
11 Armor Safety Products Company Delaware
---------------------------------------------------------------------------------------------------------------------
12 B-Square, Inc. Texas
---------------------------------------------------------------------------------------------------------------------
13 Break-Free Armor Corp. Delaware
---------------------------------------------------------------------------------------------------------------------
14 Break-Free, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
15 Casco International, Inc. New Hampshire
---------------------------------------------------------------------------------------------------------------------
16 Defense Technology Corporation of America Delaware
---------------------------------------------------------------------------------------------------------------------
17 Identicator, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
18 Monadnock Lifetime Products, Inc. Delaware
---------------------------------------------------------------------------------------------------------------------
19 Monadnock Lifetime Products, Inc. New Hampshire
---------------------------------------------------------------------------------------------------------------------
20 Monadnock Police Training Council, Inc. New Hampshire
---------------------------------------------------------------------------------------------------------------------
21 NAP Properties, Ltd. California
---------------------------------------------------------------------------------------------------------------------
22 NAP Property Managers, LLC California
---------------------------------------------------------------------------------------------------------------------
23 ▇'▇▇▇▇-▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ Armoring Company, L.L.C. Delaware
---------------------------------------------------------------------------------------------------------------------
24 Pro-Tech Armored Products of Massachusetts, Inc. Massachusetts
---------------------------------------------------------------------------------------------------------------------
25 Ramtech Development Corp. Delaware
---------------------------------------------------------------------------------------------------------------------
26 Safari Land Ltd., Inc. California
---------------------------------------------------------------------------------------------------------------------
27 Safariland Government Sales, Inc. California
---------------------------------------------------------------------------------------------------------------------
28 Speedfeed Acquisition Corp. Delaware
---------------------------------------------------------------------------------------------------------------------
29 The O'Gara Company Ohio
---------------------------------------------------------------------------------------------------------------------
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