Exhibit 10.7
______________________________________________________________
REGISTRATION RIGHTS AGREEMENT
DATED AS OF SEPTEMBER 19, 1997
BY AND AMONG
XXXXXXXX MANUFACTURING COMPANY, INC.
AS ISSUER
AND
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
AND
NATIONSBANC CAPITAL MARKETS, INC.
AS INITIAL PURCHASERS
______________________________________________________________
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of September 19, 1997, among XXXXXXXX MANUFACTURING COMPANY,
INC., a Texas corporation (the "Issuer"), and XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION and NATIONSBANC CAPITAL MARKETS, INC. (collectively, the
"Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated
September 11, 1997, among the Issuer and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Issuer to the Initial Purchasers
of $85,000,000 aggregate principal amount of 10 1/8% Senior Subordinated Notes
due 2007 (the "Notes"). In order to induce the Initial Purchasers to enter into
the Purchase Agreement, the Issuer has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees, among other
things, the registration rights for the Notes set forth in this Agreement. The
execution of this Agreement is a condition to the closing of the transactions
contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings (and, unless otherwise indicated, capitalized terms used
herein without definition shall have the respective meanings ascribed to them by
the Purchase Agreement):
Applicable Period: See Section 2(b) hereof.
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controlling person: See Section 7 hereof.
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Effectiveness Period: See Section 3(a) hereof.
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Effectiveness Target Date: See Section 4(a)(ii) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
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Exchange Notes: See Section 2(a) hereof.
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Exchange Offer: See Section 2(a) hereof.
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Exchange Offer Registration Statement: See Section 2(a) hereof.
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Holder: Any holder of Transfer Restricted Securities.
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indemnified party: See Section 7 hereof.
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Indemnified Person: See Section 7 hereof.
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indemnifying person: See Section 7 hereof.
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Indenture: The Indenture, dated as of the date hereof, by and between
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the Issuer and First Trust National Association, as trustee, pursuant to which
the Notes are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Initial Purchasers: See the introductory paragraphs to this
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Agreement.
Inspectors: See Section 5(m) hereof.
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Issue Date: As defined in the Offering Memorandum.
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Issuer: See the introductory paragraphs to this Agreement.
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Liquidated Damages: See Section 4(a) hereof.
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Notes: See the introductory paragraphs to this Agreement.
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Offering Memorandum: The final Offering Memorandum dated September
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12, 1997 related to the sale of the Notes.
Participating Broker-Dealer: See Section 2(b) hereof.
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Person or person: An individual, trustee, corporation, partnership,
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joint stock company, trust, unincorporated association, union, business
association, limited liability company, limited liability partnership, firm or
other legal entity.
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Exchange Notes and/or the Transfer Restricted Securities (as applicable),
covered by such Registration Statement, and all other amendments and supplements
to the Prospectus, including posteffective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
Records: See Section 5(m) hereof.
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Registration Default: See Section 4(a)(iv) hereof.
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Registration Statement: Any registration statement of the Issuer,
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including, but not limited to, the Exchange Offer Registration Statement or a
registration statement of the Issuer that otherwise covers any of the Transfer
Restricted Securities pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement,
including post-effective amendments, all exhibits, and all material incorporated
by reference or deemed to be incorporated by reference in such registration
statement.
Rule 144: Rule 144 promulgated pursuant to the Securities Act, as
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currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as
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currently in effect, as such rule may be amended from time to time, or any simi
lar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to the Securities Act, as
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such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
---
Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
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Shelf Notice: See Section 2(c) hereof.
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Shelf Registration Statement: See Section 3(a) hereof.
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TIA: The Trust Indenture Act of 1939, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Transfer Restricted Securities: The Notes upon original issuance
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thereof and at all times subsequent thereto, until in the case of any such
Notes, the earliest to occur of, the date on which (i) a Registration Statement
covering such Notes has been declared effective by the SEC and such Notes have
been disposed of in accordance with such effective Registration Statement, (ii)
such Notes are sold in compliance with Rule 144 or are eligible for sale under
Rule 144(k) or (iii) such Notes cease to be outstanding (including, without
limitation, upon an exchange of such Notes for Exchange Notes in the Exchange
Offer).
Trustee: The trustee under the Indenture and, if existent, under any
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indenture governing the Exchange Notes.
Underwritten registration or underwritten offering: A registration in
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which securities of the Issuer are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
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(a) The Issuer agrees to file with the SEC within 60 days after the
Issue Date a registration statement under the Securities Act with respect to an
offer to exchange (the "Exchange Offer") any and all of the Transfer Restricted
Securities for a like aggregate principal amount of debt securities of the
Issuer (the "Exchange Notes"), which Exchange Notes will be (i) substantially
identical in all material respects to the Notes, except that such Exchange
Notes will not contain terms with respect to transfer restrictions, and (ii)
entitled to the benefits of the Indenture or a trust indenture which is
identical to the Indenture (other than such changes to the Indenture or any such
identical trust indenture as are necessary to comply with any requirements of
the SEC to effect or maintain the qualification thereof under the TIA), and
which, in either case, has been qualified under the TIA, and (iii) registered
pursuant to an effective Registration Statement in compliance with the
Securities Act. The Exchange Offer will be registered pursuant to the
Securities Act on an appropriate form of Registration Statement (the "Exchange
Offer Registration Statement"), and will comply with all applicable tender offer
rules and regulations promulgated pursuant to the Exchange Act and shall be duly
registered or qualified
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pursuant to all applicable state securities or Blue Sky laws, except as would
subject the Issuer to general taxation where it is not currently subject. The
Exchange Offer shall not be subject to any condition, other than that the
Exchange Offer does not violate any applicable law, policy or interpretation of
the staff of the SEC. No securities shall be included in the Exchange Offer
Registration Statement other than the Transfer Restricted Securities and the
Exchange Notes. The Issuer agrees (x) to use its best efforts to cause such
Exchange Offer Registration Statement to be declared effective under the
Securities Act within 180 days after the Issue Date; (y) to keep the Exchange
Offer open for not less than 20 business days (or such longer period required by
applicable law) after the date that the notice of the Exchange Offer referred to
below is mailed to Holders; and (z) to use its best efforts to consummate the
Exchange Offer within 30 days after the Effectiveness Target Date. As promptly
as practicable after the Exchange Offer Registration Statement is declared
effective, the Issuer will commence the offer of Exchange Notes in exchange for
properly tendered Notes. For each Note validly tendered pursuant to the
Exchange Offer, the holder of such Note will receive the Exchange Notes having a
principal amount at maturity equal to that of the tendered Note.
Each Holder who participates in the Exchange Offer will be required to
represent that any Exchange Notes received by it will be acquired in the
ordinary course of its business, that at the time of the consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
person to participate in the distribution (within the meaning of the Securities
Act) of the Exchange Notes, and that such Holder is not an "affiliate" of the
Issuer within the meaning of Rule 405 of the Securities Act (or that if it is
such an affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable). Each Holder that
is not a Participating Broker-Dealer will be required to represent that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Notes. Each Holder that (i) is a Participating BrokerDealer and (ii)
will receive Exchange Notes for its own account in exchange for the Transfer
Restricted Securities that it acquired as the result of market-making or other
trading activities will be required to acknowledge that it will deliver a
Prospectus as required by law in connection with any resale of such Exchange
Notes. The Issuer shall allow Participating Broker-Dealers and other persons,
if any, subject to prospectus delivery requirements to use the Prospectus
included in the Exchange Offer Registration Statement in connection with the
resale of the Exchange Notes. Upon consummation of the Exchange Offer in
accordance with this Agreement, the Issuer shall have no further obligation to
register Transfer Restricted Securities pursuant to Section 3 of this Agreement.
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(b) The Issuer shall include within the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," reasonably acceptable to
the Initial Purchasers, which shall contain a summary statement of the positions
taken or policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such
"Plan of Distribution" section shall also allow the use of the Prospectus by all
persons subject to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, and include a statement describing
the means by which Participating Broker-Dealers may resell the Exchange Notes.
The Issuer shall use its best efforts to keep the Exchange Offer
Registration Statement effective under the Securities Act 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 Securities Act for a period of at least 180 days from the
consummation of the Exchange Offer (including such longer period if extended
pursuant to the last paragraph of Section 5 hereof) (the "Applicable Period").
In connection with the Exchange Offer, the Issuer shall:
(a) mail as promptly as practicable 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;
(b) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York; and
(c) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last business day on which the
Exchange Offer shall remain open.
As soon as practicable after the close of the Exchange Offer, the
Issuer shall:
(i) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Exchange Offer;
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(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes equal in principal amount to the Notes of
such Holder so accepted for exchange.
(c) If (1) prior to the consummation of the Exchange Offer, any
change in law or in the applicable interpretations of the staff of the SEC do
not permit the Issuer to effect the Exchange Offer, or (2) for any other reason
the Exchange Offer is not consummated within 210 days of the Issue Date, then
the Issuer shall as promptly as practicable deliver to the Holders and the
Trustee written notice thereof (the "Shelf Notice"), and the Issuer shall file a
Registration Statement pursuant to Section 3 hereof. Following the delivery of
a Shelf Notice to the Holders of Transfer Restricted Securities, the Issuer
shall not have any further obligation to conduct the Exchange Offer pursuant to
this Section 2, provided that the Issuer shall have the right, nonetheless, to
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proceed to consummate the Exchange Offer notwithstanding its obligations
pursuant to this Section 2(c) (and, upon such consummation, its obligations
herein with respect to a Shelf Registration Statement shall terminate).
3. Shelf Registration
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If the Issuer is required to deliver a Shelf Notice as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Issuer shall prepare and file with the
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SEC, as promptly as practicable after such filing obligation arises, a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 covering all of the Transfer Restricted Securities (the "Shelf
Registration Statement"). The Shelf Registration Statement shall be on Form S-
1 or another appropriate form permitting registration of the Transfer
Restricted Securities for resale by the Holders in the manner or manners
reasonably designated by the Holders of a majority in aggregate principal amount
of the outstanding Transfer Restricted Securities (including, without
limitation, an underwritten offering). The Issuer shall not permit any
securities other than the Transfer Restricted Securities to be included in the
Shelf Registration Statement. The Issuer shall use its best efforts to cause
the Shelf Registration Statement to be declared effective pursuant to the
Securities Act as promptly as practicable following the filing of such Shelf
Registration Statement and to keep the Shelf Registration Statement continuously
effective under the
7
Securities Act until the earlier of (i) the date which is 24 months following
the Issue Date, (ii) the date that all Transfer Restricted Securities covered by
the Shelf Registration Statement have been sold in the manner set forth and as
contemplated in the Shelf Registration Statement or (iii) the date that there
ceases to be outstanding any Transfer Restricted Securities (the "Effectiveness
Period").
(b) Supplements and Amendments The Issuer shall use its best
--------------------------
efforts to keep the Shelf Registration Statement continuously effective during
the Effectiveness Period by supplementing and amending the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to
the registration form used for such Shelf Registration Statement, or if
reasonably requested in writing timely received setting forth the reasons for
such request by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement or by any
underwriter of such Transfer Restricted Securities.
4. Liquidated Damages
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(a) The Issuer and the Initial Purchasers agree that the Holders of
Transfer Restricted Securities will suffer damages if the Issuer fails to
fulfill its obligations pursuant to Section 2 or Section 3 hereof and that it
would not be possible to ascertain the extent of such damages. Accordingly, in
the event of such failure by the Issuer to fulfill such obligations, the Issuer
hereby agrees to pay liquidated damages ("Liquidated Damages") to each Holder of
Transfer Restricted Securities under the circumstances and to the extent set
forth below:
(i) if neither the Exchange Offer Registration Statement or the
Shelf Registration Statement has been filed with the SEC on or prior to the
60th day following the Issue Date; or
(ii) if neither the Exchange Offer Registration Statement or the
Shelf Registration Statement is declared effective by the SEC on or prior
to the 180th day after the Issue Date (the "Effectiveness Target Date"); or
(iii) if an Exchange Offer Registration Statement becomes effective,
and the Issuer fails to consummate the Exchange Offer within 60 days of the
earlier of the effectiveness of such registration statement or the
Effectiveness Target Date; or
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(iv) the Shelf Registration Statement is declared effective by the
SEC and thereafter such Shelf Registration Statement ceases to be effective
or usable in connection with resales of Notes during the Effectiveness
Period;
(any of the foregoing, a "Registration Default"), then the Issuer shall pay
Liquidated Damages to each Holder, with respect to the first 90-day period
immediately following the occurrence of such Registration Default, in an amount
equal to $0.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder. Upon a Registration Default, Liquidated Damages
will accrue at the rate specified above until such Registration Default is cured
and the amount of Liquidated Damages will increase by an additional $0.05 per
week per $1,000 principal amount of Transfer Restricted Securities with respect
to each subsequent 90-day period, up to a maximum amount of Liquidated Damages
of $0.25 per week per $1,000 principal amount of Transfer Restricted Securities
(regardless of whether one or more than one Registration Default is
outstanding). Following the cure of any Registration Default relating to any
Transfer Restricted Securities, the accrual of Liquidated Damages with respect
to such Registration Default will cease. A Registration Default under clause
(i) above shall be cured on the date that either the Exchange Offer Registration
Statement or the Shelf Registration Statement is filed with the SEC; a
Registration Default under clause (ii) above shall be cured on the date that
either the Exchange Offer Registration Statement or the Shelf Registration
Statement is declared effective by the SEC; a Registration Default under clause
(iii) above shall be cured on the earlier of the date (A) the Exchange Offer is
consummated or (B) the Issuer delivers a Shelf Notice to the Holders of
Transfer Restricted Securities; and a Registration Default under clause (iv)
above shall be cured on the earlier of (A) the date the Shelf Registration
Statement is declared effective and is usable or (B) the Effectiveness Period
expires.
(b) The Issuer shall notify the Trustee within one business day after
each and every date on which a Registration Default first occurs. Accrued and
unpaid Liquidated Damages shall be paid by the Issuer to the Holders by wire
transfer of immediately available funds to the accounts specified by them or by
mailing checks to their registered addresses if no such accounts have been
specified on each interest payment date provided in the Indenture (whether or
not any interest is then payable on the Notes) and on each payment date provided
in the Indenture including, without limitation, whether upon redemption,
maturity (by acceleration or otherwise), purchase upon a change of control or
purchase upon a sale of assets. Each obligation to pay Liquidated Damages with
respect to any Registration Default shall be deemed to commence accruing on the
date of such Registration Default and to cease accruing when such Registration
Default has been cured. In no event shall
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the Issuer pay Liquidated Damages in excess of the applicable maximum weekly
amount set forth above, regardless of whether one or multiple Registration
Defaults exist.
(c) The parties hereto agree that the Liquidated Damages provided for
in this Section 4 constitute a reasonable estimate of the damages that will be
suffered by Holders by reason of the failure to file the Exchange Offer
Registration Statement or the Shelf Registration Statement, the failure of the
Exchange Offer Registration Statement or the Shelf Registration Statement to be
declared effective, the failure to consummate the Exchange Offer or the failure
of the Shelf Registration Statement to remain effective, as the case may be, in
accordance with this Agreement.
5. Registration Procedures
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In connection with the registration of any Exchange Notes or Transfer
Restricted Securities pursuant to Sections 2 or 3 hereof, the Issuer shall
effect such registration to permit the sale of such Exchange Notes or Transfer
Restricted Securities (as applicable) in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Issuer shall:
(a) Prepare and file with the SEC, a Registration Statement or
Registration Statements as prescribed by Section 2 or Section 3 hereof, and to
use its best efforts to cause such Registration Statement to become effective
and remain effective as provided herein; provided that if (1) such filing is
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pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Issuer shall furnish to and afford the Holders of the Transfer Restricted
Securities 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 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. Such documents shall be
so furnished at least 3 business days prior to such filing, or such later date
as is reasonable under the circumstances. The Issuer 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 Holders of a
majority in aggregate
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principal amount of the Transfer Restricted Securities covered by such
Registration Statement, or such Participating Broker-Dealer, as the case may be,
their counsel, or the managing underwriters, if any, shall reasonably object in
writing received by the Issuer or its counsel within one business day prior to
the date of filing setting forth the reasons for objection.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration Statement or Exchange Offer Registration
Statement, as the case may be, as may be necessary to keep such Registration
Statement continuously effective for the Effectiveness Period or the Applicable
Period, as the case may be, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
sold; cause the related Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provisions then in force) under the Securities Act; and comply with the
applicable provisions of the Securities Act, the Exchange Act and the rules and
regulations of the SEC promulgated thereunder with respect to the disposition of
all securities covered by such Registration Statement, as so amended, or in such
Prospectus, as so supplemented, and with respect to the subsequent resale of any
Notes being sold by a Participating Broker-Dealer covered by any such
Prospectus; the Issuer shall be deemed not to have used its best efforts to keep
a Registration Statement effective during the Applicable Period or the
Effectiveness Period, as the case may be, if it voluntarily takes any action
that would result in selling Holders of the Transfer Restricted Securities
covered thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Transfer Restricted Securities or such Exchange
Notes during such Period, unless (i) such action is required by applicable law,
or (ii) such action is taken by the Issuer in good faith and for valid business
reasons (not including avoidance of its obligations hereunder), including, but
not limited to, the acquisition or divestiture of assets.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, notify the selling Holders
of Transfer Restricted Securities, or each known Participating Broker-Dealer, as
the case may be, their counsel (if previously identified to the Issuer in
writing) and the managing underwriters, if any, as promptly as practicable and,
if requested, confirm such notice in writing, (i) when a Prospectus, any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to a Registration Statement or any post-effective amendment, when
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the same has become effective (including in any such written notice a statement
that any Holder may, upon request, obtain, without charge, one conformed copy of
such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the SEC of any stop order
suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of any Prospectus or the initiation of any
proceedings for that purpose, (iii) if at any time a Prospectus is required by
the Securities Act to be delivered in connection with sales of the Transfer
Restricted Securities the representations and warranties of the Issuer
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(l) hereof cease to be true and correct, (iv) of the receipt by the
Issuer of any notification with respect to the suspension of the qualification
or exemption from qualification of a Registration Statement or any of the
Transfer Restricted 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, (v) of the happening of any
material event or any material information becoming known that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue
in any material respect or that requires the making of any changes in such
Registration Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and that in the case of
the Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (vi) of the Issuer's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, use its best efforts to
prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of a
Prospectus and, if any such order is issued, to use its best efforts to obtain
the withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration Statement is filed pursuant to Section 3
hereof and if requested by the managing underwriters, if any, or the Holders of
a
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majority in aggregate principal amount of the Transfer Restricted Securities
being sold in connection with an underwritten offering, (i) as promptly as
practicable incorporate in a prospectus supplement or post-effective amendment
such information relating to underwriters, if any, any Holder of Transfer
Restricted Securities or the plan of distribution of the Transfer Restricted
Securities as the managing underwriter, if any, or such Holders may reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as practicable
after the Issuer has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment pursuant to clause (i),
and (iii) supplement or make amendments to such Registration Statement with such
information as is required in connection with any reasonable request made
pursuant to clause (i).
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, furnish to each selling
Holder of Transfer Restricted Securities and to each such Participating Broker-
Dealer who so requests and to each managing underwriter, if any, without charge,
one conformed copy of the Registration Statement or Registration Statements and
each post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, deliver to each selling
Holder, or each such Participating Broker-Dealer, as the case may be, its
counsel (if previously identified to the Issuer in writing), and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary Prospectus), and each amendment
or supplement thereto and any documents incorporated by reference therein, as
such Persons may reasonably request; and, subject to the last paragraph of this
Section 5 hereof, the Issuer hereby consents to the use of such Prospectus and
each amendment or supplement thereto by each of the selling Holders or, during
the Applicable Period, each such Participating Broker-Dealer, as the case may
be, and their underwriters or agents, if any, and dealers, if any, in connection
with the offering and sale of the Transfer Restricted Securities covered by or
the sale by Partici-
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pating Broker-Dealers of the Exchange Notes pursuant to such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Transfer Restricted Securities or
any delivery of a Prospectus contained in the Exchange Offer Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, use its best efforts to register or qualify, and
to cooperate with the selling Holders of Transfer Restricted Securities or each
such Participating Broker-Dealer, as the case may be, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Transfer Restricted Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions as any selling Holder, Participating Broker-
Dealer, or the managing underwriters reasonably request in writing; keep each
such registration or qualification (or exemption therefrom), effective during
the period such Registration Statement is required to be kept effective and do
any and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Transfer Restricted Securities covered by the applicable
Registration Statement; provided that the Issuer shall not be required to (A)
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qualify as a foreign corporation or as a dealer in securities in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in any such jurisdiction
where it is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Transfer Restricted Securities and
the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to be sold,
which certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company ("DTC"), and enable such
Transfer Restricted Securities to be in such denominations and registered in
such names as the managing underwriters, if any, or Holders may reasonably
request at least two business days prior to any sale of the Transfer Restricted
Securities.
(j) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi) above, as promptly as
practicable prepare and (subject to Section
14
5(a) hereof), file with the SEC, at the expense of the Issuer, a supplement or
post-effective amendment to the Registration Statement or a supplement to the
related Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as thereafter
delivered to the purchasers of the Transfer Restricted Securities being sold
thereunder or to the purchasers of the Exchange Notes to whom such Prospectus
will be delivered by a Participating Broker-Dealer, any such Prospectus will not
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(k) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, (i) provide the Trustee with
certificates for the Transfer Restricted Securities in a form eligible for
deposit with DTC and (ii) provide a CUSIP number for the Transfer Restricted
Securities.
(l) In connection with an underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings and take all
other customary and appropriate actions as are reasonably requested by the
managing underwriters in order to expedite or facilitate the registration or the
disposition of such Transfer Restricted Securities, and in such connection, (i)
make such representations and warranties to the underwriters, with respect to
the business of the Issuer and the Registration Statement, Prospectus and
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 offerings; (ii) obtain opinions of counsel to the Issuer and
updates thereof in form and substance reasonably satisfactory to the managing
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by 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
Issuer (and, if necessary, any other independent certified public accountants of
any subsidiary of the Issuer or of any business acquired by it for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed 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 offerings and such other
matters as are reasonably requested by underwriters as permitted by Statement on
------------
Auditing Standards No. 72; and (iv) if an underwriting agreement is entered
-------------------------
into, the same shall contain indemnification provisions and
15
procedures no less favorable than those set forth in Section 7 hereof 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.
(m) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Transfer Restricted Securities being
sold, or each such Participating Broker-Dealer, as the case may be, any
underwriter participating in any such disposition of Transfer Restricted
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 Issuer 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 Issuer and its subsidiaries to
supply all relevant information reasonably requested by any such Inspector in
connection with such Registration Statement. Records which the Issuer
determines, in good faith, to be confidential and any Records which it notifies
the Inspectors are confidential shall not be disclosed by the Inspectors, unless
(i) the release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction or (ii) the information in such Records
has been made generally available to the public, other than as a result of the
disclosure or failure to safeguard by such Inspector.
(n) Provide an indenture trustee for the Transfer Restricted
Securities or the Exchange Notes, as the case may be, and cause the Indenture to
be qualified under the TIA not later than the effective date of the Exchange
Offer or the first Registration Statement relating to the Transfer Restricted
Securities; and in connection therewith, cooperate with the trustee under any
such indenture and the Holders of the Transfer Restricted Securities, to effect
such changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use its best
efforts to cause such trustee to execute, all customary documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable such indenture to be so qualified in a timely
manner.
16
(o) Comply with all applicable rules and regulations of the SEC and,
as soon as reasonably practicable after the effective date of the applicable
Registration Statement, make generally available to the holders of Exchange
Notes and the Holders, if any, a consolidated earning statement of the Issuer
(which need not be certified by an independent public accountant) that satisfies
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
(p) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Securities by Holders to the Issuer (or to such other Person
as directed by the Issuer), in exchange for the Exchange Notes, the Issuer
shall, where appropriate, xxxx or cause to be marked on such Transfer Restricted
Securities that such Transfer Restricted Securities are being cancelled in
exchange for the Exchange Notes; in no event shall such Transfer Restricted
Securities be marked as paid or otherwise satisfied.
(q) Cooperate with each seller of Transfer Restricted Securities
covered by any Registration Statement and each underwriter, if any,
participating in the disposition of such Transfer Restricted Securities and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD").
(r) Use its best efforts to take all other steps necessary to effect
the registration of the Transfer Restricted Securities covered by a Registration
Statement contemplated hereby.
(s) Use its best efforts to cause the Transfer Restricted Securities
or the Exchange Notes, as applicable, covered by an effective registration
statement required by Section 2 or Section 3 hereof to be rated by no more than
two rating agencies, if so requested by the Holders of a majority in aggregate
principal amount of Transfer Restricted Securities relating to such registration
statement or the managing underwriters in connection therewith, if any.
The Issuer may require each seller of Transfer Restricted Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuer such information regarding such seller or Participating
Broker-Dealer and the distribution of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, as the Issuer may, from time to time, reasonably request. The Issuer may
exclude from such registration the Transfer Restricted Securities or Exchange
Notes of any seller or Participating Broker-Dealer, as the case may be, who
fails to furnish such
17
information within a reasonable time after receiving such request. Each Holder
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Issuer all information required to be disclosed in order to make
the information previously furnished to the Issuer by such Holder not materially
misleading.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, that, upon receipt of any notice from the Issuer of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi)
hereof, such Holder shall forthwith discontinue disposition of such Transfer
Restricted Securities covered by such Registration Statement or Prospectus or
such Exchange Notes to be sold by such Participating Broker-Dealer, as the case
may be, until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof, or until it is advised in
writing by the Issuer that the use of the applicable Prospectus may be resumed,
and has received copies of any amendments or supplements thereto.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer shall be borne by the Issuer,
whether or not the Exchange Offer or a Shelf Registration Statement is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Transfer Restricted Securities or
Exchange Notes), (ii) printing expenses (including, without limitation, expenses
of printing certificates for Transfer Restricted Securities or Exchange Notes in
a form eligible for deposit with DTC and of printing Prospectuses if the
printing of Prospectuses is requested by the managing underwriters, if any, or,
in respect of Transfer Restricted Securities or Exchange Securities to be sold
by any Participating Broker-Dealer during the Applicable Period, by the Holders
of a majority in aggregate principal amount of the Transfer Restricted
Securities included in any Registration Statement or of such Exchange
Securities, as the case may be), (iii) fees and disbursements of counsel for the
Issuer, (iv) fees and disbursements of all independent certified public
accountants referred to in Section 5(l)(iii) hereof (including, without
limitation, the expenses of any special audit and
18
"cold comfort" letters required by or incident to such performance), (v) the
fees and expenses of any "qualified independent underwriter" or other
independent appraiser participating in an offering pursuant to Section 3 of
Schedule E to the By-laws of the NASD, (vi) rating agency fees, (vii) fees and
expenses of all other Persons retained by the Issuer, (viii) internal expenses
of the Issuer (including, without limitation, all salaries and expenses of
officers and employees of the Issuer performing legal or accounting duties),
(ix) the expense of any annual audit and (x) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange. Nothing contained in this Section 6 shall create an obligation on the
part of the Issuer to pay or reimburse any Holder for any underwriting
commission or discount attributable to any such Holder's Transfer Restricted
Securities included in an underwritten offering pursuant to a Registration
Statement filed in accordance with the terms of this Agreement, or to guarantee
such Holder any profit or proceeds from the sale of such Notes.
(b) In connection with any Shelf Registration Statement hereunder,
the Issuer shall reimburse the Holders of the Transfer Restricted Securities
being registered in such registration for the reasonable fees and disbursements
of not more than one counsel chosen by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities to be included in such
Registration Statement and other reasonable out-of-pocket expenses of the
Holders of Transfer Restricted Securities reasonably incurred in connection with
the registration of the Transfer Restricted Securities.
7. Indemnification
---------------
The Issuer agrees to indemnify and hold harmless (i) each of the
Purchasers, each Holder of Transfer Restricted Securities, each Holder of
Exchange Securities and each Participating Broker-Dealer, (ii) each person, if
any, who controls (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) any such Person (any of the persons referred to
in this clause (ii) being hereinafter referred to as a "controlling person"),
and (iii) the respective officers, directors, partners, employees,
representatives and agents of any of such Person or any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Indemnified Person") to the fullest extent lawful, from and against any
and all losses, claims, damages, liabilities, judgments, actions and expenses
(including, without limitation, and as incurred, reimbursement of all
reasonable costs of investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental agency or body,
commenced or threatened, including the reasonable fees and expenses of counsel
to any Indemni-
19
fied Person) directly or indirectly caused by, related to, based upon, arising
out of or in connection with any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus (as
amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary Prospectus, or caused by, arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by (i) any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to any Indemnified
Person furnished to the Issuer or any underwriter in writing by such
Indemnified Person or on behalf of such Indemnified Person with such Indemnified
Person's written authorization expressly for use therein, or (ii) any untrue
statement contained in or omission from a preliminary Prospectus if a copy of
the Prospectus (as then amended or supplemented, if the Issuer shall have
furnished to or on behalf of the Holder participating in the distribution
relating to the relevant Registration Statement any amendments or supplements
thereto) was not sent or given by or on behalf of such Holder to the person
asserting any such losses, liabilities, claims, damages or expenses who
purchased Securities, if such is required by law at or prior to the written
confirmation of the sale of such Securities to such person and the untrue
statement contained in or omission from such preliminary Prospectus was
corrected in the Prospectus (or the Prospectus as amended or supplemented). The
Issuer shall notify the Holders promptly upon becoming aware thereof of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation) or litigation of which it shall have become aware in
connection with the matters addressed by this Agreement which involves the
Issuer or an Indemnified Person.
In connection with any Registration Statement in which a Holder of
Transfer Restricted Securities is participating, such Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Issuer and its directors, officers, partners, employees,
representatives and agents and each person who controls the Issuer within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
to the same extent as the foregoing indemnity from the Issuer to each
Indemnified Person, but only with reference to information relating to such
Indemnified Person and furnished to the Issuer in writing by such Indemnified
Person or on behalf of such Indemnified Person with such Indemnified Person's
written authorization expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary Prospectus.
The liability of any Indemnified Person pursuant to this paragraph shall
20
in no event exceed the net proceeds received by such Indemnified Person from
sales of Transfer Restricted Securities giving rise to such obligations.
If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
person") in writing, and the indemnifying person, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party, unless (i) the indemnifying person
and the indemnified party shall have mutually agreed in writing to the contrary,
(ii) the indemnifying person shall have failed promptly to assume the defense
and employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying person, or any affiliate of the
indemnifying person and such indemnified party shall have been reasonably
advised by counsel that either (x) there may be one or more legal defenses
available to it which are different from or additional to those available to the
indemnifying person or such affiliate of the indemnifying person and counsel for
an indemnified person shall have advised such indemnified person that it may not
be adequately represented with respect to such different or additional legal
defenses or (y) a conflict may exist between such indemnified party and the
indemnifying person or such affiliate of the indemnifying person (in which case
the indemnifying person shall not have the right to assume the defense of such
action on behalf of such indemnified party), it being understood, however, that
the indemnifying person shall not, in connection with any one such action or
separate but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) for all such indemnified parties, which firm shall be
reasonably satisfactory to the indemnifying parties. Such separate firm for
sellers of Transfer Restricted Securities shall be designated in writing by
those indemnified parties who sold a majority in outstanding aggregate principal
amount of Transfer Restricted Securities sold by all such indemnified parties,
and any such separate firm for the Issuer, its directors, its officers and such
control persons of the Issuer shall be designated in writing by the Issuer.
The indemnifying person shall not be liable for any
21
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying person agrees to indemnify any indemnified party from and against
any loss or liability by reason of such settlement or judgment to the extent of
such indemnifying party's indemnification obligation hereunder. No indemnifying
person shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs
of this Section 7 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities, or expenses referred to therein (other
than by reason of the exceptions provided therein), then each indemnifying
person under such paragraphs, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages, liabilities, or expenses (i)
in such proportion as is appropriate to reflect the relative benefits received
by the indemnified party on the one hand and the indemnifying person(s) on the
other in connection with the statements or omissions that resulted in such
losses, claims, damages, liabilities, or expenses or (ii) if the allocation
provided by clause (i) above 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 person(s)
and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of the Issuer on the one hand and any
Indemnified Persons on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Issuer or by such Indemnified Persons and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--- ----
(even if such indemnified parties were treated as one entity for such purpose)
or by any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred
22
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, in no event
shall an Indemnified Person be required to contribute any amount in excess of
the amount by which proceeds received by such Indemnified Person from sales of
Transfer Restricted Securities or Exchange Securities exceeds the amount of any
damages that such Indemnified Person has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the indemnifying parties may
otherwise have to the indemnified parties referred to above. The Indemnified
Persons' obligations to contribute pursuant to this Section 7 are several in
proportion to the respective principal amount of Securities sold by each of the
Indemnified Persons hereunder and not joint.
8. Rules 144 and 144A
------------------
The Issuer covenants that it will file the reports required to be
filed by it pursuant to the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner and, if at any
time the Issuer is not required to file such reports, it will, upon the
reasonable request of any Holder of Transfer Restricted Securities, make
available information required by Rule 144 and Rule 144A under the Securities
Act in order to permit sales pursuant to Rule 144 and Rule 144A. The Issuer
further covenants that it will take such further action as any Holder of
Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 and Rule 144A, or (b) any similar
rule or regulation hereafter adopted by the SEC.
9. Underwritten Registrations
--------------------------
(a) If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount
23
of such Transfer Restricted Securities included in such offering and shall be
reasonably acceptable to the Issuer.
No Holder of Transfer Restricted Securities may participate in any
underwritten registration hereunder, unless such Holder (a) agrees to sell such
Holder's Transfer Restricted Securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
(b) Each Holder of Transfer Restricted Securities agrees, if
requested (pursuant to a timely written notice) by the managing underwriters in
an underwritten offering or by a placement agent in a private offering of the
Issuer's debt securities, not to effect any private sale or distribution
(including a sale pursuant to Rule 144(k) or Rule 144A under the Securities Act,
but excluding non-public sales to any of its affiliates, officers, directors,
employees and controlling persons), of any of the Notes except pursuant to an
Exchange Offer, during the period beginning 10 days prior to, and ending 90 days
after, the closing date of the underwritten offering.
The foregoing provisions shall not apply to any Holder of Transfer
Restricted Securities if such Holder is prevented by applicable statute or
regulation from entering into any such agreement.
The Issuer agrees, without the written consent of the managing
underwriters in an underwritten offering of Transfer Restricted Securities
covered by a Registration Statement filed pursuant to Section 3 hereof, not to
effect any public or private sale or distribution of its respective debt
securities, including a sale pursuant to Regulation D or Rule 144A under the
Securities Act, during the period beginning 10 days prior to, and ending 90 days
after, the closing date of each underwritten offering made pursuant to such
Registration Statement (provided, however, that such period shall be extended by
-------- -------
the number of days from and including the date of the giving of any notice
pursuant to Section 5(c)(v) or (c)(vi) hereof to and including the date when
each seller of Transfer Restricted Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof).
24
10. Miscellaneous
-------------
(a) Remedies. In the event of a breach by the Issuer of any of its
--------
obligations under this Agreement, each Holder of Transfer Restricted Securities,
in addition to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchasers, in the Purchase Agreement,
or granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Issuer agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by the Issuer of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Issuer has not, as of the date
--------------------------
hereof, and the Issuer shall not, after the date of this Agreement, enter into
any agreement with respect to any of its securities that is inconsistent with
the rights granted to the Holders of Transfer Restricted Securities in this
Agreement or otherwise conflicts with the provisions hereof. The Issuer will
not enter into any agreement with respect to any of its securities which will
grant to any Person piggyback registration rights with respect to a
Registration Statement.
(c) 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 or departures from the provisions
hereof may not be given, unless the Issuer has obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Transfer Restricted Securities. Notwithstanding the foregoing, a
waiver or consent to or departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose securities are
being sold pursuant to a 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
Transfer Restricted Securities being sold by such Holders pursuant to such
Registration Statement; provided that the provisions of this sentence may not be
--------
amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence.
(d) Notices. All notices and other communications (including,
-------
without limitation, any notices or other communications to the Trustee),
provided for or permitted hereunder shall be made in writing by hand-delivery,
registered first-class mail, next-day air courier or telecopier:
25
(i) if to a Holder of Transfer Restricted Securities, at the most
current address given by the Trustee to the Issuer;
(ii) if to the Issuer, Xxxxxxxx Manufacturing Company, Inc., 0000
Xxxxxxx, Xxxxxxxxx, Xxxxx, Attention: Xxxxxx X. Xxxxxxxxx, with a copy to
O'Melveny & Xxxxx LLP, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: J. Xxx Xxxxxx, Esq., and
(iii) if to any Initial Purchasers, c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, with a copy to Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxx X. Xxxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a nationally recognized next-day air courier, if made
by next-day air courier; and when receipt is acknowledged by the addressee, if
telecopied on a business day on such business day, if not on a business day, on
the first business day thereafter.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the parties
hereto, including, without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities. The Issuer
agrees that the Holders of the Notes shall be third-party creditor beneficiaries
to the agreements made hereunder by the Initial Purchasers and the Issuer, and
each Holder shall have the right to enforce such agreements directly to the
extent it deems such enforcement necessary or advisable to protect its rights
hereunder.
(f) 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.
26
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
(i) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties hereto that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement, is intended by the parties hereto as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(k) Notes Held by the Issuer or its Affiliates. Whenever the consent
------------------------------------------
or approval of Holders of a specified percentage of Transfer Restricted
Securities is required hereunder, Transfer Restricted Securities held by the
Issuer or its affiliates (as such term is defined in Rule 405 under the
Securities Act) (other than the Initial Purchasers or subsequent Holders of
Transfer Restricted Securities or Exchange Notes if such subsequent Holders are
deemed to be affiliates solely by reason of their holdings of such Transfer
Restricted Securities or Exchange Notes), shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
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(l) Survival. This Agreement is intended to survive the
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consummation of the transactions contemplated by the Purchase Agreement. The
indemnification and contribution obligations under section 7 of this Agreement
shall survive the termination of the Issuer's obligations under sections 2 and 3
of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXXXX MANUFACTURING COMPANY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Chief Financial Officer
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
NATIONSBANC CAPITAL MARKETS, INC.
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: _____________________________
Name:
Title:
29
