EXHIBIT 4.2
EXECUTION COPY
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of March 11, 2003
Between
RADNOR HOLDINGS CORPORATION
RADNOR CHEMICAL CORPORATION
RADNOR DELAWARE II, INC.
RADNOR MANAGEMENT DELAWARE, INC.
RADNOR MANAGEMENT, INC.
STYROCHEM DELAWARE, INC.
STYROCHEM EUROPE DELAWARE, INC.
STYROCHEM U.S., LTD.
STYROCHEM GP, L.L.C.
STYROCHEM LP, L.L.C.
WINCUP EUROPE DELAWARE, INC.
WINCUP GP, L.L.C.
WINCUP LP, L.L.C.
WINCUP TEXAS, LTD.
WINCUP HOLDINGS, INC.
as Issuers
and
DEUTSCHE BANK SECURITIES INC.
UBS WARBURG LLC
FLEET SECURITIES, INC.
PNC CAPITAL MARKETS, INC.
as Initial Purchasers
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TABLE OF CONTENTS
Page
----
1. Definitions ............................................................ 1
2. Exchange Offer ......................................................... 4
3. Shelf Registration ..................................................... 8
4. Additional Interest .................................................... 10
5. Registration Procedures ................................................ 12
6. Registration Expenses .................................................. 20
7. Indemnification ........................................................ 21
8. Rules 144 and 144A ..................................................... 24
9. Underwritten Registrations ............................................. 24
10. Miscellaneous .......................................................... 25
(b) No Inconsistent Agreements. ..................................... 25
(c) Adjustments Affecting Registrable Securities. ................... 25
(d) Amendments and Waivers. ......................................... 25
(e) Notices. ........................................................ 26
(f) Successors and Assigns. ......................................... 27
(g) Counterparts. ................................................... 27
(h) Headings. ....................................................... 27
(i) Governing Law. .................................................. 27
(j) Severability. ................................................... 28
(k) Third Party Beneficiaries. ...................................... 28
(l) Entire Agreement. ............................................... 28
(m) Underwriting Agreement. ......................................... 28
(n) Termination. .................................................... 28
i
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this "Agreement") is
dated as of March 11, 2003 between Radnor Holdings Corporation, a Delaware
corporation (the "Company"), Radnor Chemical Corporation, a Delaware
corporation, Radnor Delaware II, Inc., a Delaware corporation, Radnor Management
Delaware, Inc., a Delaware corporation, Radnor Management, Inc., a Delaware
corporation, StyroChem Delaware, Inc., a Delaware corporation, StyroChem Europe
Delaware, Inc., a Delaware corporation, StyroChem U.S., Ltd., a Texas limited
partnership, StyroChem GP, L.L.C., a Delaware limited liability company,
StyroChem LP, L.L.C., a Delaware limited liability company, WinCup Europe
Delaware, Inc., a Delaware corporation, WinCup GP, L.L.C., a Delaware limited
liability company, WinCup LP, L.L.C., a Delaware limited liability company,
WinCup Texas, Ltd., a Texas limited partnership, and WinCup Holdings, Inc., a
Delaware corporation (collectively, the "Guarantors" and together with the
Company, the "Issuers") and Deutsche Bank Securities Inc., UBS Warburg LLC,
Fleet Securities, Inc. and PNC Capital Markets, Inc. (together, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated March 6, 2003, among the Company, the Guarantors and the
Initial Purchasers (the "Purchase Agreement") which provides for the sale by the
Company to the Initial Purchasers of $135,000,000 aggregate principal amount of
the Company's 11% Senior Notes due 2010 (the "Notes") and the issuance by the
Guarantors of their respective guarantees with respect to the Notes (the
"Guarantees", and together with the Notes, the "Securities"). In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Issuers have
agreed to provide the registration rights set forth in this Agreement for the
benefit of the Initial Purchasers and their direct and indirect transferees and
assigns. The execution and delivery of this Agreement by the Issuers is a
condition to the Initial Purchasers' obligation to purchase the Securities under
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the first introductory paragraph hereto.
Applicable Period: See Section 2(b) hereof.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a "Federal holiday" (as such term is used in Rule 14d-1(c)(6) under
the Exchange Act); references to "day" shall mean a calendar day.
Company: See the first introductory paragraph hereto.
Effectiveness Date: The 210th day after the Issue Date.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Exchange Securities: See Section 2(a) hereof.
Filing Date: The 60th day after the Issue Date.
Guarantors: See the first introductory paragraph hereto.
Holder: Any holder of a Registrable Security or Registrable
Securities.
Holders' Counsel: See Section 5(a) hereof.
Indenture: The Indenture, dated as of March 11, 2003 among the
Company, the Guarantors and Wachovia Bank, National Association, as Trustee,
pursuant to which the Securities will be issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchasers: See the first introductory paragraph hereto.
Inspectors: See Section 5(o) hereof.
Issue Date: The date on which the Securities were originally issued
under the Indenture.
Issuers: See the first introductory paragraph hereto.
NASD: National Association of Securities Dealers, Inc.
Notes: See the second introductory paragraph hereto.
Participating Broker-Dealer: See Section 2(b) hereof.
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Person: An individual, trustee, corporation, partnership, joint stock
company, trust, unincorporated association, union, business association, firm or
other legal entity.
Private Exchange: See Section 2(b) hereof.
Private Exchange Securities: See Section 2(b) hereof.
Prospectus: The prospectus included in any Registration Statement
(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 such Rule may be amended from time to
time, or any similar rule or regulation hereafter adopted by the SEC)) as
amended or supplemented by any prospectus supplement, and all other amendments
and supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Purchase Agreement: See the second introductory paragraph hereto.
Records: See Section 5(o) hereof.
Registrable Securities: Each Security upon original issuance of the
Securities and at all times subsequent thereto, each Exchange Security as to
which Section 2(c)(iv) hereof is applicable upon original issuance and at all
times subsequent thereto and each Private Exchange Security upon original
issuance thereof and at all times subsequent thereto, until in the case of any
such Security, Exchange Security or Private Exchange Security, as the case may
be, the earliest to occur of (i) a Registration Statement (other than, with
respect to any Exchange Security as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Security,
Exchange Security or such Private Exchange Security having been declared
effective by the SEC and such Security, Exchange Security or Private Exchange
Security, as the case may be, having been disposed of in accordance with such
effective Registration Statement, (ii) such Security, Exchange Security or
Private Exchange Security, as the case may be, having been sold pursuant to Rule
144 or being eligible for sale pursuant to paragraph (k) of Rule 144, (iii) such
Security having been exchanged for an Exchange Security pursuant to an Exchange
Offer which may be resold without restriction under state and Federal securities
laws, or (iv) such Security, Exchange Security or Private Exchange Security, as
the case may be, ceasing to be outstanding for purposes of the Indenture.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the Issuers,
including, but not limited to, the Exchange Offer Registration Statement, filed
with the SEC 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 under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for secondary offers and sales
of securities made in compliance
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therewith resulting in offers and sales by subsequent holders that are not
affiliates of an issuer of such securities being free of the registration and
prospectus delivery requirements of the Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as 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: See the second introductory paragraph hereto.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Filing Date: See Section 3(a) hereof.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration Statement: See Sections 3(a) and 3(b) hereof.
Staff: See Section 2(b) hereof.
Subsequent Shelf Registration Statement: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Trustee: The trustee under the Indenture and, if existent, the trustee
under any subsequent indenture governing the Exchange Securities and/or Private
Exchange Securities (if any).
Underwritten registration or underwritten offering: A registration
pursuant to the Securities Act in which securities of the Company are sold to an
underwriter for reoffering to the public.
2. Exchange Offer
(a) The Issuers shall, at the sole expense of the Company, file with
the SEC, no later than the Filing Date, a registration statement under the
Securities Act with respect to a registered offer to exchange (the "Exchange
Offer") any and all of the Registrable Securities (other than Private Exchange
Securities, if any) for a like aggregate principal amount of debt securities of
the Company which are identical in all material respects to the Notes (the
"Exchange Notes"), and which will be fully and unconditionally guaranteed on the
same terms as the Guarantees by the Guarantors (such guarantees, together with
the Exchange Notes, the "Exchange Securities") except that the Exchange
Securities shall have been registered pursuant
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to an effective Registration Statement under the Securities Act and shall
contain no restrictive legend thereon, and which are entitled to the benefits of
the Indenture or a trust indenture which is identical in all material respects
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. The Exchange Offer shall be registered
under the Securities Act on an appropriate form under the Securities Act (the
"Exchange Offer Registration Statement") and shall comply with Regulation 14E
and Rule 13e-4 under the Exchange Act (other than the filing requirements of
Rule 13e-4). The Issuers shall use their best efforts to cause the Exchange
Offer Registration Statement to be declared effective under the Securities Act
on or before the Effectiveness Date. Upon the Exchange Offer Registration
Statement being declared effective, the Issuers will offer the Exchange
Securities in exchange for surrender of the Registrable Securities. The Issuers
will keep the Exchange Offer open for at least 20 Business Days (or longer if
required by applicable law) after the date notice of the Exchange Offer is
mailed to Holders. For purposes of this Section 2(a) only, if after such
Exchange Offer Registration Statement is initially declared effective by the
SEC, the Exchange Offer or the issuance of the Exchange Securities thereunder is
interfered with by any stop order, injunction or other similar order or
requirement of the SEC or any other governmental agency or court, such Exchange
Offer Registration Statement shall be deemed not to have become effective for
purposes of this Agreement during the period that such stop order, injunction or
other similar order or requirement shall remain in effect. Each Holder who
participates in the Exchange Offer will be required to represent that (i) any
Exchange Securities received by it will be acquired in the ordinary course of
its business, (ii) 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
Securities, and (iii) such Holder is not an affiliate of the Company or any of
the Guarantors within the meaning of the Securities Act, or if it is such an
affiliate, that it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable to it. Upon
consummation of the Exchange Offer in accordance with this Section 2, the
provisions of this Agreement shall continue to apply, mutatis mutandis, solely
with respect to Registrable Securities that are Private Exchange Securities and
Exchange Securities held by Participating Broker-Dealers, and the Issuers shall
have no further obligation to register Registrable Securities pursuant to
Section 3 hereof (other than Private Exchange Securities and other than in
respect of any Exchange Securities as to which Section 2(c)(iv) hereof applies).
No securities other than the Exchange Securities shall be included in the
Exchange Offer Registration Statement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement certain information necessary to allow a
broker-dealer who holds Securities that were acquired for its own account as a
result of market-making activities or other ordinary course trading activities
(other than Securities acquired directly from the Issuers or one of the Issuers'
affiliates) to exchange such Securities pursuant to the Exchange Offer and to
satisfy the prospectus delivery requirements in connection with resales of
Exchange Securities received by such broker-dealer in the Exchange Offer,
including 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 Division of Corporation Finance of
the SEC (the "Staff") 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 Securities received by such broker-dealer in the
Exchange Offer (a "Participating Broker-Dealer"), whether such positions or
policies have been publicly disseminated by the Staff
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or such positions or policies, in the judgment of the Initial Purchasers and the
Company, represent the prevailing views of the Staff, including a statement that
any such broker-dealer who receives Exchange Securities for Registrable
Securities pursuant to the Exchange Offer may be deemed to be an "underwriter"
within the meaning of the Securities Act and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Securities, which prospectus delivery requirement may be satisfied by
the delivery of the final Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section shall also state
that the delivery by a Participating Broker-Dealer of the final Prospectus
relating to the Exchange Offer in connection with resales of Exchange Securities
shall not be deemed to be an admission by such Participating Broker-Dealer that
it is an "underwriter" within the meaning of the Securities Act, and shall
contain all other information with respect to resales of the Exchange Securities
by Participating Broker-Dealers that the SEC may require in connection
therewith, but such "Plan of Distribution" shall not name any such Participating
Broker-Dealer or disclose the principal amount of Exchange Securities held by
any such Participating Broker-Dealer, except to the extent required by the
Staff. Such "Plan of Distribution" section shall also expressly permit 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 Securities. Each broker-dealer that receives Exchange Securities
for its own account in exchange for Securities where such Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities must acknowledge that it will comply with any prospectus
delivery requirements under the Securities Act in connection with any resale of
Exchange Securities.
The Issuers shall use their best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all Persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as is necessary to comply with applicable law in
connection with any resale of the Exchange Securities; provided, however, that
such period shall not exceed 150 days after the Exchange Offer Registration
Statement is declared effective (or such longer period if extended pursuant to
the last paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, any Initial Purchaser
holds any Securities acquired by it and having, or which are reasonably likely
to be determined to have, the status of an unsold allotment in the initial
distribution, or any other Holder is not entitled to participate in the Exchange
Offer, the Issuers upon the request of the Initial Purchasers or any such Holder
shall simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue and deliver to such Initial Purchaser and any such Holder,
in exchange (the "Private Exchange") for such Securities held by such Initial
Purchaser and any such Holder, a like principal amount of debt securities of the
Company and guarantees of the Guarantors with respect thereto that are identical
in all material respects to the Exchange Notes and the guarantees with respect
thereto, except for any such restrictions on transfer that, in the opinion of
counsel for the Issuers, are required under the Securities Act (the "Private
Exchange Securities"), and which are issued pursuant to the same indenture as
the Exchange Securities; provided, however, the Issuers shall not be required to
effect such exchange if, in the written opinion of counsel for the Issuers (a
copy of which shall be delivered to such Initial Purchaser and any Holder
affected thereby), such exchange cannot be effected without registration under
the
6
Securities Act. The Private Exchange Securities shall bear the same CUSIP number
or CINS number as the Exchange Securities.
Interest on the Exchange Securities and the Private Exchange
Securities will accrue from (A) the later of (i) the last interest payment date
on which interest was paid on the Securities surrendered in exchange therefor or
(ii) if the Securities are surrendered for exchange on a date on or after the
record date for an interest payment date to occur on or after the date of such
exchange and as to which interest will be paid, the date of such interest
payment date or (B) if no interest has been paid on the Securities, from the
Issue Date.
In connection with the Exchange Offer, the Company shall:
(1) 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;
(2) utilize the services of a depositary for the Exchange Offer with
an address in The City of New York;
(3) permit Holders to withdraw tendered Securities at any time prior
to the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open, by sending to the institution
specified in the notice, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount of
Securities delivered for exchange, and a statement that such Holder is
withdrawing its election to have such Securities or a portion thereof
exchanged;
(4) notify each Holder that any Security not tendered will remain
outstanding and continue to accrue interest, but will not retain any rights
under this Agreement (except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(5) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the expiration of the Exchange Offer or
the Private Exchange, as the case may be, the Company shall:
(1) accept for exchange all Securities properly tendered and not
validly withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Securities so accepted
for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Securities, Exchange Securities or Private Exchange Securities,
as the case may be, equal in principal amount to the Securities of such
Holder so accepted for exchange.
The Exchange Offer and any Private Exchange shall not be subject to
any conditions, other than that the Exchange Offer or such Private Exchange, as
the case may be,
7
does not violate applicable law including, without limitation, the Securities
Act or the Exchange Act, or any applicable interpretation of the Staff.
The Exchange Securities and any Private Exchange Securities may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that the Exchange
Securities shall not be subject to the transfer restrictions set forth in the
Indenture (and that the Private Exchange Securities shall be subject only to any
such restrictions on transfer that, in the opinion of counsel for the Issuers,
are required under the Securities Act). The Indenture or such indenture shall
provide that the Exchange Securities, any Private Exchange Securities and the
Securities shall vote and consent together on all matters as one class and that
neither the Exchange Securities, any Private Exchange Securities or the
Securities will have the right to vote or consent as a separate class on any
matter.
(c) If (i) the Company determines in reasonably good faith that (x)
because of any change in law or in the applicable interpretations of the Staff,
the SEC is not likely to permit the Issuers to effect the Exchange Offer prior
to the Effectiveness Date, or (y) that the Exchange Securities would not be
tradeable upon receipt by the Holders that participate in the Exchange Offer
without restriction under applicable state and Federal securities laws (other
than due solely to the status of a Holder as an affiliate of the Company or any
of the Guarantors within the meaning of the Securities Act or by breach by a
Holder of its representation described in the third to the last sentence of
Section 2(a) hereof), (ii) the Exchange Offer is not consummated within 240 days
after the Issue Date, (iii) any holder of Private Exchange Securities so
requests, or (iv) in the case of any Holder that participates in the Exchange
Offer, such Holder does not receive Exchange Securities on the date of the
exchange that may be sold without restriction under state and Federal securities
laws (other than due solely to the status of such Holder as an affiliate of the
Company or any of the Guarantors within the meaning of the Securities Act or by
breach by such Holder of its representation described in the third to the last
sentence of Section 2(a) hereof) and so notifies the Company within 60 days
after such Holder first becomes aware of any such restriction and concurrently
therewith provides the Company with a reasonable basis for its conclusion, then,
in the case of each of clauses (i), (ii), (iii) and (iv) of this sentence, the
Issuers shall promptly deliver to the Holders of Registrable Securities and the
Trustee written notice thereof (the "Shelf Notice") and shall file a Shelf
Registration Statement pursuant to Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Shelf Registration. The Issuers shall as promptly as practicable
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable Securities
(the "Shelf Registration Statement"). If the Issuers shall not have filed an
Exchange Offer Registration Statement, the Issuers shall use their best efforts
to file with the SEC the Shelf Registration Statement on or prior to the Filing
Date. Otherwise, the Issuers shall use their best efforts to file with the SEC
the Shelf Registration Statement on or prior to the 30th day after the delivery
of the Shelf Notice (the "Shelf Filing Date"). The Shelf Registration Statement
shall be on Form S-1 or another appropriate form under the Securities Act
permitting registration of such Registrable Securities for resale by Holders in
the manner or manners designated by them (including, without limitation, one or
8
more underwritten offerings). The Issuers shall not permit any securities other
than the Registrable Securities to be included in the Shelf Registration
Statement or any Subsequent Shelf Registration Statement.
The Issuers shall use their best efforts to cause the initial Shelf
Registration Statement to be declared effective under the Securities Act on or
before the 150th day after the Shelf Filing Date and to keep the Shelf
Registration Statement continuously effective under the Securities Act until the
date which is three years after the Issue Date, subject to extension pursuant to
the last paragraph of Section 5 hereof (the "Effectiveness Period"), or such
shorter period ending when (i) all Registrable Securities covered by the Shelf
Registration Statement have been sold in the manner set forth and as
contemplated in the initial Shelf Registration Statement or (ii) a Subsequent
Shelf Registration Statement covering all of the Registrable Securities has been
declared effective under the Securities Act.
(b) Subsequent Shelf Registrations. If the initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement ceases to be effective
for any reason at any time during the Effectiveness Period (other than because
of the sale of all of the securities registered thereunder), the Issuers shall
use their best efforts to obtain the prompt withdrawal of any order suspending
the effectiveness thereof, and in any event shall within 15 days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner to
obtain the withdrawal of the order suspending the effectiveness thereof, or file
an additional "shelf" Registration Statement pursuant to Rule 415 covering all
of the then remaining Registrable Securities (a "Subsequent Shelf Registration
Statement"). If a Subsequent Shelf Registration Statement is filed, the Issuers
shall use their best efforts to cause the Subsequent Shelf Registration to be
declared effective under the Securities Act as soon as practicable after such
filing and to keep such Registration Statement continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Shelf Registration Statement and any
other Subsequent Shelf Registration was previously continuously effective. As
used herein the term "Shelf Registration Statement" means the Shelf Registration
Statement and any Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Issuers shall promptly supplement
and amend the Shelf Registration Statement if required by the rules, regulations
or instructions applicable to the registration form used for such Shelf
Registration Statement, if required by the Securities Act, or if requested by
the Holders of a majority in aggregate principal amount of the Registrable
Securities covered by such Registration Statement or by any underwriter of such
Registrable Securities, and the Issuers agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly after
its being used or filed with the SEC.
(d) Hold-Back Agreements
(1) Restrictions on Public Sale by Holders of Registrable Securities.
Each Holder of Registrable Securities whose Registrable Securities are
covered by a Shelf Registration Statement filed pursuant to this Section 3
(which Registrable Securities are not being sold in the underwritten
offering described below) agrees, if requested (pursuant to a timely
written notice) by the Issuers or the managing underwriter or underwriters
in an underwritten offering, not to effect any public sale or distribution
of any of the Registrable Securities or a similar security of the Company,
including a sale pursuant to
9
Rule 144 or Rule 144A (except as part of such underwritten offering),
during the period beginning 20 days prior to, and ending 90 days after, the
closing date of each underwritten offering made pursuant to such Shelf
Registration Statement, to the extent timely notified in writing by the
Issuers or by the managing underwriter or underwriters; provided, however,
that each holder of Registrable Securities shall be subject to the
hold-back restrictions of this Section 3(d)(1) only once during the term of
this Agreement.
The foregoing provisions shall not apply to any Holder if such Holder
is prevented by applicable statute or regulation from entering into any
such agreement; provided, however, that any such Holder shall undertake, in
its request to participate in any such underwritten offering, not to effect
any public sale or distribution of the class of securities covered by such
Shelf Registration Statement (except as part of such underwritten offering)
during such period unless it has provided 30 days' prior written notice of
such sale or distribution to the Issuers or the managing underwriter or
underwriters, as the case may be.
(2) Restrictions on the Issuers and Others. The Issuers agree (A) not
to effect any public or private sale or distribution (including, without
limitation, a sale pursuant to Regulation D under the Securities Act) of
any securities of the same class as or similar to those covered by a Shelf
Registration Statement filed pursuant to this Section 3, or any securities
convertible into or exchangeable or exercisable for such securities, during
the period beginning 20 days prior to, and ending 90 days after, the
commencement of an underwritten public distribution of Registrable
Securities, where the managing underwriter or underwriters of such
distribution so requests; (B) to include in any agreements entered into by
the Issuers on or after the date of this Agreement (other than any
underwriting agreement relating to a public offering registered under the
Securities Act) pursuant to which the Issuers issue or agree to issue
securities of the same class as or similar to the Securities a provision
that each holder of such securities that are of the same class as or
similar to Securities issued at any time on or after the date of this
Agreement agrees not to effect any public or private sale or distribution,
or request or demand the registration, of any such securities (or any
securities convertible into or exchangeable or exercisable for such
securities) during the period referred to in clause (A) of this Section
3(d)(2), including any sale pursuant to Rule 144 or Rule 144A; and (C) not
to grant or agree to grant any "piggy-back registration" or other similar
rights to any holder of the Issuers' or any of their respective
subsidiaries' securities issued on or after the date of this Agreement with
respect to any Registration Statement.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the Holders of
Securities will suffer damages if the Issuers fail to fulfill their obligations
under Section 2 or Section 3 hereof and that it would not be feasible to
ascertain the extent of such damages with precision. Accordingly, the Issuers
jointly and severally agree to pay, as liquidated damages and as set forth in
the Indenture and the Notes, additional interest on the Notes ("Additional
Interest") under the circumstances and to the extent set forth below (each such
event referred to in clauses (i) through (v) below, a "Registration Default"):
(i) if the Exchange Offer Registration Statement has not been
filed with the SEC on or prior to the Filing Date;
10
(ii) if the Exchange Offer Registration Statement has not been
declared effective on or prior to the Effectiveness Date;
(iii) if the Exchange Offer has not been consummated within 240
days after the Issue Date;
(iv) if the Shelf Registration has not been filed on or prior to
the Shelf Filing Date or declared effective within 150 days following the
delivery of the Shelf Notice, as the case may be; or
(v) if (A) the Exchange Offer Registration Statement has been
declared effective but ceases to be effective for a period of 15
consecutive days without being succeeded immediately by any additional
Registration Statement filed with the SEC and declared effective at any
time prior to the time that the Exchange Offer is consummated or (B) the
Shelf Registration or any Subsequent Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at any time
during the Effectiveness Period for a period of 15 consecutive days
without being succeeded immediately by any additional Registration
Statement filed and declared effective,
then Additional Interest shall accrue on the Notes over and above the interest
rate then applicable to the Notes on each day during the first 90-day period
immediately following the occurrence of such Registration Default, at a rate
equal to 25 basis points (0.25%) per annum. The amount of Additional Interest
will increase by an additional 25 basis points (0.25%) per annum during each
subsequent 90-day period until the applicable Registration Statement is filed,
the applicable Registration Statement is declared effective, the Exchange Offer
is consummated or the applicable Registration Statement again becomes effective,
as the case may be, provided, however, that the Additional Interest rate on the
Notes may not exceed 100 basis points (1.00%) per annum and, accordingly, the
maximum interest rate on the Notes may not exceed 12%; and provided, further,
that (1) upon the filing of the Exchange Offer Registration Statement (in the
case of (i) above), (2) upon the effectiveness of the Exchange Offer
Registration Statement (in the case of (ii) above), (3) upon the consummation of
the Exchange Offer (in the case of (iii) above), (4) upon the filing of the
Shelf Registration or upon the effectiveness of a Shelf Registration, as
applicable (in the case of (iv) above), or (5) upon the effectiveness of the
Exchange Offer Registration Statement which had ceased to remain effective (in
the case of (v)(A) above), or upon the effectiveness of the Shelf Registration
which had ceased to remain effective (in the case of (v)(B) above), the interest
rate borne by the Notes, including Additional Interest, will be reduced by the
amount of Additional Interest on the Notes as a result of such clause (i), (ii),
(iii), (iv) or (v) (or the relevant subclause thereof), as the case may be.
Notwithstanding the foregoing, the Issuers shall not be required to
pay such Additional Interest with respect to the Registrable Securities held by
a Holder if the applicable Registration Default arises from the failure of the
Issuers to file, or cause to become effective, a Shelf Registration Statement
within the time periods specified in this Section 4 by reason of the failure of
such Holder to provide such information as (i) the Company may reasonably
request, with reasonable prior written notice, for use in the Shelf Registration
Statement or any Prospectus included therein to the extent the Company
reasonably determines that such information is required to be included therein
by applicable law, (ii) the NASD or the SEC may request in connection with such
Shelf Registration Statement or (iii) is required to comply with
11
the agreements of such Holder contained in the penultimate paragraph of Section
5 to the extent compliance thereof is necessary for the Shelf Registration
Statement to be declared effective.
(b) The Company shall notify the Trustee within three Business Days
after each Registration Default (an "Event Date"). Any amounts of Additional
Interest due pursuant to clause (i), (ii), (iii), (iv) or (v) of Section 4(a)
hereof will be payable in cash semi-annually on each March 15 and September 15
(to the holders of record on the March 1 and September 1 immediately preceding
such dates), commencing with the first such date occurring after any such
Additional Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Notes making up the Registrable Securities, multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months and, in the case of a partial
month, the actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder the Issuers
shall:
(a) Prepare and file with the SEC on or prior to the Filing Date (in
the case of an Exchange Offer Registration Statement) or the Shelf Filing Date
(in the case of a Shelf Registration Statement), a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3 hereof, and use their
best efforts to cause each such Registration Statement to become effective and
remain effective as provided herein; provided, however, that, if (1) such filing
is 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 Securities during the Applicable Period, before filing
any Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement or each such Participating
Broker-Dealer, as the case may be, one counsel selected by the Holders of a
majority in aggregate principal amount of the Registrable Securities (the
"Holders' Counsel"), counsel for such Participating Broker-Dealer 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 (in each case
at least five Business Days prior to such filing, or such later date as is
reasonable under the circumstances) and, in the event the Initial Purchasers are
participating in such Registration Statement, use their best efforts to reflect
in each such document, when filed with the SEC, such comments as the Initial
Purchasers or their counsel may reasonably propose. The Issuers shall not file
any Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of the
Registrable Securities covered by such Registration Statement and the Holders'
Counsel, or any such Participating Broker-Dealer and its counsel, as the case
may be, or the managing underwriters, if any, shall reasonably object.
12
(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; cause the related Prospectus to be supplemented by
any prospectus supplement required by applicable law, and as so supplemented to
be filed pursuant to Rule 424 promulgated under the Securities Act (as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC); and comply with the provisions of the Securities Act and
the Exchange Act applicable to it 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
securities being sold by a Participating Broker-Dealer covered by any such
Prospectus.
The Issuers shall be deemed not to have used their best efforts to
cause a Registration Statement to become effective or to keep a Registration
Statement effective during the Applicable Period or the Effectiveness Period, as
the case may be, if any of them voluntarily takes any action that would result
in selling Holders of the Registrable Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Securities not being able
to sell such Registrable Securities or such Exchange Securities during that
period unless (i) such action is required by applicable law or (ii) such action
is taken by the Issuers in good faith and for valid business reasons (not
including avoidance of the Issuers' obligations hereunder), including 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
Securities during the Applicable Period, notify the selling Holders of
Registrable Securities and Holders' Counsel, or each such Participating
Broker-Dealer and their counsel, as the case may be, and the managing
underwriters, if any, promptly (but in any event within two Business Days), (i)
when a Prospectus or any prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon request,
obtain, at the sole expense of the Issuers, 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 therein and exhibits thereto), (ii) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
preliminary Prospectus or the initiation of any proceedings for that purpose,
(iii) if at any time when a Prospectus is required by the Securities Act to be
delivered in connection with sales of the Registrable Securities or resales of
Exchange Securities by Participating Broker-Dealers the representations and
warranties of the Issuers contained in any agreement (including any underwriting
agreement) contemplated by Section 5(n) hereof, to the knowledge of the Company,
cease to be true and correct in all material respects, (iv) of the receipt by
the Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement or any
of the Registrable Securities or the Exchange Securities to be sold by any
Participating Broker-Dealer for offer or sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, or any 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
13
material respect or that requires the making of any changes in or amendments or
supplements to 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 the light of the circumstances
under which they were made, not misleading, (vi) of any request by the SEC or
any state securities authority for amendments or supplements to the Registration
Statement or Prospectus (including schedules and exhibits thereto), and (vii) of
the Company's 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
Securities during the Applicable Period, use their 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 or suspending
the qualification (or exemption from qualification) of any of the Registrable
Securities or the Exchange Securities to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued,
use their 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 underwriter or underwriters (if any),
the Holders of a majority in aggregate principal amount of the Registrable
Securities being sold in connection with an underwritten offering or any
Participating Broker-Dealer, (i) promptly incorporate in a prospectus supplement
or post-effective amendment such information as the managing underwriter or
underwriters (if any), their counsel, such Holders, Holders' Counsel, any
Participating Broker-Dealer or their counsel reasonably request to be included
therein and (ii) make all required filings of such prospectus supplement or such
post-effective amendment as soon as practicable after the Company has received
notification of the matters to be incorporated in such prospectus supplement or
post-effective amendment.
(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
Securities during the Applicable Period, furnish to each selling Holder of
Registrable Securities, Holders' Counsel and to each such Participating
Broker-Dealer who so requests and its counsel and each managing underwriter, if
any, at the sole expense of the Issuers, 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 by reference therein and all exhibits
thereto.
(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
Securities during the Applicable Period, deliver to each selling
14
Holder of Registrable Securities and Holders' Counsel, or each such
Participating Broker-Dealer and its counsel, as the case may be, and each
underwriter, if any, at the sole expense of the Issuers, 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, the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
Holders of Registrable Securities or each such Participating Broker-Dealer, as
the case may be, and the underwriters or agents, if any, and dealers, if any, in
connection with the offering and sale of the Registrable Securities covered by,
or the sale by Participating Broker-Dealers of the Exchange Securities pursuant
to, such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities or any
delivery of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Securities during
the Applicable Period, use their best efforts to register and qualify, and to
cooperate with the selling Holders of Registrable Securities and Holders'
Counsel or each such Participating Broker-Dealer and its counsel, as the case
may be, the managing underwriter or underwriters, if any, and their counsel in
connection with the registration or qualification (or exemption from such
registration or qualification) of, such Registrable Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions within the
United States as any selling Holder, Participating Broker-Dealer, or the
managing underwriter or underwriters reasonably request; provided, however, that
where Exchange Securities held by Participating Broker-Dealers or Registrable
Securities are offered other than through an underwritten offering, the Issuers
agree to cause the Issuers' counsel to perform Blue Sky investigations and file
registrations and qualifications required to be filed pursuant to this Section
5(h); 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
Securities held by Participating Broker-Dealers or the Registrable Securities
covered by the applicable Registration Statement; provided, however, that none
of the Issuers shall be required to (A) qualify generally to do business in any
jurisdiction where such Issuer is not then so qualified, (B) take any action
that would subject such Issuer to general service of process in any such
jurisdiction where it is not then so subject or (C) subject itself to taxation
in excess of a nominal dollar amount in any such jurisdiction where such Issuer
is not then so subject.
(i) If a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Registrable Securities
and the managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with The Depository Trust Company; and enable
such Registrable Securities to be in such denominations and registered in such
names as the managing underwriter or underwriters, if any, or Holders may
request.
(j) Use their best efforts to cause the Registrable Securities covered
by the Registration Statement to be registered with or approved by such other
governmental agencies or authorities as may be reasonably necessary to enable
the seller or sellers thereof or the underwriter or underwriters, if any, to
consummate the disposition of such Registrable Securities, except as may be
required solely as a consequence of the nature of such selling Holder's
15
business, in which case the Issuers will cooperate in all reasonable respects
with the filing of such Registration Statement and the granting of such
approvals; provided, however, that none of the Issuers shall be required to (A)
qualify generally to do business in any jurisdiction where such Issuer 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 excess of a nominal dollar amount in any such
jurisdiction where such Issuer is not then so subject.
(k) 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
Securities during the Applicable Period, upon the occurrence of any event
contemplated by Section 5(c)(v), 5(c)(vi) or 5(c)(vii) hereof, as promptly as
practicable prepare and (subject to Section 5(a) hereof) file with the SEC, at
the sole expense of the Issuers, 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 Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities 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 the light of the circumstances
under which they were made, not misleading.
(l) Use its best efforts to cause the Registrable Securities covered
by a Registration Statement or the Exchange Securities, as the case may be, to
continue to be rated by the rating agencies which initially rated the
Securities, during the period the Registration Statement is required to remain
effective hereunder.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit with
The Depository Trust Company and (ii) obtain a CUSIP number and a CINS number
for the Registrable Securities.
(n) In connection with any underwritten offering of Registrable
Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Notes and take all other actions in order to expedite
or facilitate the registration or the disposition of such Registrable Securities
and, in such connection, (i) make such representations and warranties to, and
covenants with, the Holders of such Registrable Securities and the underwriters
with respect to the business of the Company and its subsidiaries (including any
acquired business, properties or entity, if applicable) 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 of debt securities similar to
the Notes, and confirm the same in writing if and when requested; (ii) obtain
the written opinions of counsel to the Issuers and written updates thereof in
form, scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to each Holder of such Registrable Securities and the
underwriters covering the matters customarily covered in opinions given in
underwritten offerings and such other matters as may be reasonably requested by
the managing underwriter or underwriters; (iii) obtain "comfort" letters and
updates thereof in form, scope and substance
16
reasonably satisfactory to the managing underwriter or underwriters from the
independent certified public accountants of the Company (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements and
financial data are, or are required to be, included or incorporated by reference
in the Registration Statement), addressed to each selling Holder of such
Registrable Securities and the underwriters, such letters to be in customary
form and covering matters of the type customarily covered in "comfort" letters
in connection with underwritten offerings and such other matters as may be
reasonably requested by the managing underwriter or underwriters; (iv) if an
underwriting agreement is entered into, the same shall contain indemnification
and contribution provisions and procedures no less favorable than those set
forth in Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable Securities
covered by such Registration Statement and the managing underwriter or
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section 7; and (v) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in aggregate principal amount
of all of the Registrable Securities being sold and the managing underwriter or
underwriters, if any, to evidence compliance with any customary conditions
contained in the underwriting agreement or any other agreement entered into by
the Issuers. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(o) 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
Securities during the Applicable Period, make available for inspection by any
selling Holder of such Registrable Securities being sold, or each such
Participating Broker-Dealer, as the case may be, any underwriter participating
in any such disposition of Registrable Securities, if any, and any attorney or
accountant 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 business hours, all
financial and other records, pertinent corporate documents and instruments of
the Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of the Company
and its subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement; provided, however,
that all information shall be kept confidential by each such Inspector, except
to the extent that (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction, (iii) disclosure of such information is, in the
opinion of counsel for any Inspector, necessary or advisable in connection with
any action, claim, suit or proceeding, directly or indirectly, involving or
potentially involving such Inspector and arising out of, based upon, relating
to, or involving this Agreement, or any transactions contemplated hereby or
arising hereunder; provided, however, that prior notice be provided to the
Company as soon as practicable and in any event not less than three business
days before any such disclosure, of the potential disclosure of any information
by such Inspector pursuant to clause (ii) or this clause (iii) to permit the
Company to obtain a protective order (or waive the provisions of this Section
5(o)) and that such Inspector shall take such actions as are reasonably
necessary to protect the confidentiality of such information to the extent such
action is otherwise not inconsistent with an impairment of, or in derogation of,
the rights and interests of the Holders or any Inspector, or (iv) the
information in such Records has been made generally available to
17
the public. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to agree that information obtained
by it as a result of such inspections shall be deemed confidential, shall be
used only for due diligence purposes pursuant to this Section 5(o) and shall not
be used by it as the basis for any market transactions in the securities of the
Issuers unless and until such information is made generally available to the
public. Each selling Holder of such Registrable Securities and each such
Participating Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company to undertake
appropriate action to prevent disclosure of the Records deemed confidential at
the Company's sole expense.
(p) Provide an indenture trustee for the Registrable Securities or the
Exchange Securities, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange Offer
Registration Statement or the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the trustee
under any such indenture and the Holders of the Registrable 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 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.
(q) Use their best efforts to comply with all applicable rules and
regulations of the SEC and make generally available to its securityholders
earnings statements satisfying the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder (as such Rule may be amended from time to time, or
any similar rule or regulation hereafter adopted by the SEC) no later than 45
days after the end of any 12-month period (or 90 days after the end of any
12-month period if such period is a fiscal year) (i) commencing at the end of
any fiscal quarter in which Registrable Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(r) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuers, in a form customary for
underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Securities participating in the Exchange Offer or the
Private Exchange, as the case may be, that the Exchange Securities or Private
Exchange Securities, as the case may be, and the related indenture constitute
legal, valid and binding obligations of the Issuers, enforceable against the
Issuers in accordance with their respective terms, subject to customary
exceptions and qualifications.
(s) If the Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Securities by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be, the Company
shall xxxx, or cause to be marked, on such Registrable Securities that such
Registrable Securities are being canceled in exchange for the Exchange
Securities or the Private Exchange Securities, as the case may be; in no event
shall such Registrable Securities be marked as paid or otherwise satisfied.
18
(t) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, a reasonable time prior to the filing of any document which is to be
incorporated by reference into a Registration Statement or Prospectus after the
initial filing of a Shelf Registration Statement, provide a reasonable number of
copies of such document to the Initial Purchasers on behalf of the Holders of
Registrable Securities covered thereby, and make available such of the
representatives of the Company and its subsidiaries as shall be reasonably
requested by such Holders or the Initial Purchasers on behalf of such Holders
for discussion of such document.
(u) Cooperate with each seller of Registrable Securities covered by
any Registration Statement, Holders' Counsel and each underwriter, if any,
participating in the disposition of such Registrable Securities and its counsel
in connection with any filings required to be made with the NASD (including,
without limitation, engaging and cooperating with a "qualified independent
underwriter" if required by the Rules of the NASD).
(v) Use its reasonable best efforts to take all other steps necessary
or advisable to effect the registration of the Exchange Securities and/or
Registrable Securities covered by a Registration Statement contemplated hereby.
The Company may require each seller of Registrable Securities or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Securities or Exchange
Securities to be sold by such Participating Broker-Dealer, as the case may be,
as the Company may, from time to time, reasonably request, including, without
limitation, a written representation to the Issuers (which may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration
Statement or Shelf Registration Statement, as applicable) stating (A) that it is
not an affiliate of any of the Issuers, within the meaning of the Securities
Act, (B) that it is acquiring the Exchange Securities in the ordinary course of
business, (C) the amount of Registrable Securities held by such Holder prior to
the Exchange Offer and the amount of Registrable Securities owned by such Holder
to be exchanged in the Exchange Offer, (D) if such Holder is not a
broker-dealer, that such Holder is not engaged in, and does not intend to engage
in, and has no arrangement or understanding with any Person to participate in, a
distribution of the Exchange Securities to be issued, within the meaning of the
Securities Act and (E) if such Holder is a broker-dealer, that it will receive
Exchange Securities for its own account in exchange for Registrable Securities
that were acquired as a result of market-making activities or other trading
activities and that it will be required to acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Company may exclude from such registration the Registrable Securities of any
seller or Participating Broker-Dealer who fails to furnish such information or
to make such representations within a reasonable time after receiving such
request. Each seller as to which any registration pursuant to a Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such seller not materially
misleading.
Each Holder of Registrable Securities and each Participating
Broker-Dealer will agree by acquisition of such Registrable Securities or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, that upon actual receipt of any notice from the Company of the happening
of any event of the kind described in Section 5(c)(ii), 5(c)(iii), 5(c)(iv),
5(c)(v), 5(c)(vi) or 5(c)(vii) hereof, such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus or Exchange
19
Securities to be sold by such Holder or Participating Broker-Dealer, as the case
may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Company that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. If so directed by the Company, each Holder
will deliver to the Company all copies (other than permanent file copies then in
such Holder's possession) of the Prospectus covering the Registrable Securities
that was current at the time of receipt of such notice. In the event the Company
shall give any such notice, each of the Effectiveness Period and the Applicable
Period shall be extended by the number of days during such periods from and
including the date of the giving of such notice to and including the date when
each seller of Registrable Securities covered by such Registration Statement or
Exchange Securities to be sold by such Participating Broker-Dealer, as the case
may be, shall have received (x) the copies of the supplemented or amended
Prospectus contemplated by Section 5(k) hereof or (y) the Advice.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne jointly and severally by the
Issuers whether or not the Exchange Offer Registration Statement 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
Registrable Securities or Exchange Securities and determination of the
eligibility of the Registrable Securities or Exchange Securities for investment
under the laws of such jurisdictions (x) where the holders of Registrable
Securities are located, in the case of the Exchange Securities, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Securities or
Exchange Securities to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses, including, without limitation,
expenses of printing certificates for Registrable Securities or Exchange
Securities in a form eligible for deposit with The Depository Trust Company and
of printing prospectuses if the printing of prospectuses is requested by the
managing underwriter or underwriters, if any, by the Holders of a majority in
aggregate principal amount of the Registrable Securities included in any
Registration Statement or in respect of Registrable Securities or Exchange
Securities to be sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Issuers and reasonable fees and
disbursements of Holders' Counsel (subject to the provisions of Section 6(b)
hereof), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) hereof (including, without
limitation, the expenses of any special audit and "comfort" letters required by
or incident to such performance), (vi) rating agency fees, (vii) Securities Act
liability insurance, if the Company desires such insurance, (viii) fees and
expenses of all other Persons retained by the Company, (ix) internal expenses of
the Company (including, without limitation, all salaries and expenses of
officers and employees of the Issuers performing legal or accounting duties),
(x) the expense of any annual audit, (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange, if applicable, and (xii) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, securities sales
20
agreements, indentures and any other documents necessary in order to comply with
this Agreement.
(b) The Issuers shall reimburse the Holders of the Registrable
Securities being registered in a Shelf Registration Statement for the reasonable
fees and disbursements of Holders' Counsel (in addition to appropriate local
counsel) and other reasonable out-of-pocket expenses of such Holders of
Registrable Securities incurred in connection with the registration and sale of
the Registrable Securities.
7. Indemnification
(a) The Issuers jointly and severally agree to indemnify and hold
harmless each Holder of Registrable Securities, its officers, authorized
representatives and directors (such officers, authorized representatives and
directors of a Holder of Registrable Securities being referred to in this
Section 7(a) as "affiliated persons") and each person, if any, who controls a
Holder of Registrable Securities within the meanings of Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (including but not limited to, and
subject to Section 7(c) below, reasonable attorneys' fees and any and all
expenses reasonably incurred in investigating, preparing or defending against
any investigation or litigation commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) ("Losses"), joint or several, to which a Holder of Registrable
Securities or any such controlling or affiliated person may become subject,
under the Securities Act, the Exchange Act, any other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such Losses (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 any Registration
Statement (or any amendment thereto) or Prospectus (as amended or supplemented
if the Issuers shall have furnished any amendments or supplements thereto), or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in the case of any
Prospectus, in the light of the circumstances under which they were made) not
misleading, provided, however, that none of the Issuers shall be liable in any
such case to the extent that such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with information relating to a
Holder of Registrable Securities made in the Registration Statement or
Prospectus, or amendment or supplement in reliance upon and in conformity with
written information furnished to the Company by such Holder of Registrable
Securities expressly for use therein; provided, further, that the indemnity
obligations arising under this Section 7(a) with respect to the Registration
Statement or Prospectus shall not inure to a Holder's benefit or that of any
such controlling or affiliated person if the person asserting any such Losses
purchased the Securities from such Holder of Registrable Securities and if a
copy (provided that the Issuers have complied with their obligations under
Section 5 hereof) of the Prospectus was not sent or given by such Holder or on
such Holder's behalf to such person at or prior to the written confirmation of
the sale of the Securities to such person, and if the Prospectus would have
cured the untrue statement or omission giving rise to such Losses.
The indemnity agreement in this Section 7(a) shall be in addition to
any liability which any of the Issuers may otherwise have.
21
(b) Each Holder of Registrable Securities, severally and not jointly,
will indemnify and hold harmless each Issuer, its officers, authorized
representatives and directors (such officers, authorized representatives and
directors of the Issuers being referred to in this Section 7(b) as "affiliated
persons") and each person, if any, who controls any of the Issuers within the
meanings of Section 15 of the Securities Act or Section 20 of the Exchange Act,
against any Losses to which the Issuers may become subject, under the Securities
Act, the Exchange Act, any other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such Losses (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 any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if the Issuers
shall have furnished any amendments or supplements 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 (in
the case of any Prospectus, in the light of the circumstances under which they
were made) not misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement or the Prospectus or such
amendment or supplement in reliance upon and in conformity with written
information relating to a Holder of Registrable Securities furnished to the
Issuers by such Holder of Registrable Securities expressly for use therein,
provided, however, that in no case shall any Holder of Registrable Securities be
liable or responsible for any amount in excess of the discounts received by such
Holder of Registrable Securities.
The indemnity agreement in this Section 7(b) shall be in addition to any
liability which any of the Issuers may otherwise have.
(c) Promptly after receipt by an indemnified party under Section 7(a)
or 7(b) of notice of the commencement of any action (including any governmental
investigation), such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party under Section 7(a) or 7(b), except to the
extent it was unaware of such action and has been prejudiced in any material
respect by such failure, or from any liability which it may have to any
indemnified party otherwise than under such Section 7(a) or 7(b). In case any
such action shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. If, however, (i)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party or (ii) an
indemnified party shall have reasonably concluded that representation of such
indemnified party and the indemnifying party by the same counsel would be
inappropriate under applicable standards of professional conduct due to actual
or potential differing interests between them and the indemnified party so
notifies the indemnifying party, then the indemnified party shall be entitled to
employ counsel different from counsel for the indemnifying party at the expense
of the indemnifying party and the indemnifying party shall not have the right to
assume the defense of
22
such indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to local counsel) for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same set
of allegations or circumstances. The counsel with respect to which fees and
expenses shall be so reimbursed shall be designated in writing by Deutsche Bank
Securities Inc. in the case of parties indemnified pursuant to Section 7(a) and
by Radnor Holdings Corporation in the case of parties indemnified pursuant to
Section 7(b).
The Issuers shall not be liable for any settlement of any such action
or proceeding effected without the Company's written consent (not to be
unreasonably withheld) and if settled with its written consent or if there is a
final judgment for the plaintiff, the Issuers agree to indemnify and hold
harmless each Holder of Registrable Securities, its officers, authorized
representatives and directors and each person, if any, who controls a Holder of
Registrable Securities within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act to the extent provided in this Agreement.
Without limiting the generality of the foregoing, no indemnifying party 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 has been threatened to be made a party by such
indemnified party and to which the indemnity herein is applicable; provided,
however, that an indemnifying party may effect such a settlement without the
consent of the indemnified party if such settlement includes an unconditional
release of such indemnified party from all liability for claims that are the
subject matter of such proceeding or the indemnifying party indemnifies the
indemnified party in writing and posts a bond for an amount equal to the maximum
liability for all such claims as contemplated above.
(d) If the indemnification provided for in paragraphs (a) and (b) of
this Section 7 is for any reason unavailable to (other than by reason of
exceptions provided therein), or insufficient to hold harmless, an indemnified
party in respect of any Losses (or actions in respect thereof), referred to
therein, then each indemnifying party under such paragraphs, in lieu of
indemnifying such indemnified party thereunder and in order to provide for just
and equitable contribution, shall contribute to the amount paid or payable by
such indemnified party as a result of such Losses (or actions in respect
thereof), in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
Securities or (ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand in connection with the statements
or omissions or alleged statements or omissions that resulted in such Losses,
(or actions in respect thereof) as well as any other relevant equitable
considerations. The relative benefits received by the Issuers on the one hand
and a Holder of Registrable Securities on the other hand shall be deemed to be
in the same proportion as the total proceeds from the offering of the Securities
(net of discounts but before deducting expenses) received by the Issuers bears
to the total proceeds received by a Holder of Registrable Securities from the
sale thereof. 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 Issuers, on the one hand or in writing by
a Holder of Registrable Securities, on the other hand, the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission, and any other equitable considerations appropriate
in the circumstances.
23
(e) 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 the Issuers and a Holder of Registrable Securities were each 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 (or actions in respect thereof), referred to in this
Section 7 shall be deemed to include, subject to the limitations set forth
above, any legal fees or other expenses reasonably incurred by such indemnified
party in connection with defending or investigating any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a Holder of
Registrable Securities be required to contribute any amount in excess of the
Holder of Registrable Securities' discounts applicable to the Securities. 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.
(f) Promptly after receipt by any party to this Agreement of notice of
the commencement of any action, suit or proceeding, such party will, if a claim
for contribution in respect thereof is to be made against another party (the
"contributing party"), notify the contributing party of the commencement
thereof; but the omission so to notify the contributing party will not relieve
such contributing party from any liability which it may have to any other party
for contribution under the Securities Act, the Exchange Act or otherwise, except
to the extent it was unaware of such action and has been prejudiced in any
material respect by such failure or from any liability which it may have to any
other party other than for contribution under the Securities Act, the Exchange
Act or otherwise. In case any such action, suit or proceeding is brought against
any party, and such party notifies a contributing party of the commencement
thereof, the contributing party will be entitled to participate therein with the
notifying party and any other contributing party similarly notified.
8. Rules 144 and 144A
The Issuers covenant to file with the Trustee copies of the annual
reports and of the information, documents and other reports which the Issuers
may be required to file with the SEC pursuant to Section 13 or Section 15(d) of
the Exchange Act, within 15 days after the Issuers are required to file the same
with the SEC. If, during any period in which Registrable Securities are
outstanding, the Issuers are not obligated to file annual reports, documents or
other reports with the SEC pursuant to Section 13 or 15(d) of the Exchange Act,
the Issuers will furnish to the Trustee the same such annual reports documents
or other reports as if the Issuers were so subject. The Issuers further
covenant, for so long as any Registrable Securities remain outstanding, to make
available to any Holder or beneficial owner of Registrable Securities in
connection with any sale thereof and any prospective purchaser of such
Registrable Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Registrable Securities pursuant to Rule 144A, unless the Issuers are
then subject to Section 13 or 15(d) of the Exchange Act and reports filed
thereunder satisfy the information requirements of Rule 144A(d)(4) as then in
effect.
9. Underwritten Registrations
If any of the Registrable Securities covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and
24
manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering and shall be reasonably acceptable to the
Company.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any 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.
10. Miscellaneous
(a) Remedies. The Issuers agree that monetary damages (including the
liquidated damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers 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 Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Issuers' other issued and outstanding
securities under any such agreements. The Issuers have not entered and will not
enter into any agreement with respect to any of their securities which will
grant to any Person "piggy-back" registration rights with respect to a
Registration Statement.
(c) Adjustments Affecting Registrable Securities. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (A) the Holders of not less than a majority in aggregate principal
amount of the then outstanding Registrable Securities and (B) in circumstances
that would adversely affect the Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Securities held by all Participating Broker-Dealers; provided,
however, that Section 7 hereof and this Section 10(c) may not be amended,
modified or supplemented without the prior written consent of each Holder and
each Participating Broker-Dealer (including any person who was a Holder or
Participating Broker-Dealer of Registrable Securities or Exchange Securities, as
the case may be, disposed of pursuant to any Registration Statement).
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
Holders of Registrable Securities 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 of Registrable
25
Securities may be given by Holders of at least a majority in aggregate principal
amount of the Registrable Securities being sold by such Holders pursuant to such
Registration Statement.
(e) 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 facsimile:
(1) if to a Holder of the Registrable Securities or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
securities registrar under the Indenture, with a copy in like manner to the
Initial Purchasers as follows:
Deutsche Bank Securities Inc.
UBS Warburg LLC
Fleet Securities, Inc.
PNC Capital Markets, Inc.
c/o Deutsche Bank Securities Inc.
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, III
26
(2) if to the Initial Purchasers, at the address specified in Section
10(d)(1) hereof;
(3) if to the Issuers, at the addresses as follows:
Radnor Holdings Corporation
Three Radnor Corporate Center, Xxxxx 000
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxx Xxxxxx LLP
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile No: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
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 next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in the Indenture.
(f) 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,
the Holders and the Participating Broker-Dealers; provided, however, that this
Agreement shall not inure to the benefit of or be binding upon a successor or
assign of a Holder unless such successor or assign holds Registrable Securities.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
27
(j) 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 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.
(k) Third Party Beneficiaries. Holders of Registrable Securities and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Issuers on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
(m) Underwriting Agreement. Notwithstanding the provisions of Sections
3(d), 5, 6 and 7 hereof, in the event of a Shelf Registration pursuant to
Section 3 hereof, to the extent that the Holders of Registrable Securities shall
enter into an underwriting or similar agreement, which agreement contains
provisions covering one or more matters addressed in such Sections with
substantially similar effect, the provisions contained in such Sections
addressing such matter or matters shall be of no force or effect with respect to
the registration of securities being effected in connection with such
underwriting or similar agreement.
(n) Termination. This Agreement shall terminate and be of no further
force or effect when there shall not be any Registrable Securities, except that
the provisions of Sections 4, 6, 7, 10(h) and 10(j) hereof shall survive any
such termination.
[Signature Pages Follow]
28
IN WITNESS WHEREOF, the parties have executed this Exchange
and Registration Rights Agreement as of the date first written above.
RADNOR HOLDINGS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Finance
RADNOR CHEMICAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
RADNOR DELAWARE II, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
RADNOR MANAGEMENT DELAWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Finance
RADNOR MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Finance
29
STYROCHEM DELAWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
STYROCHEM EUROPE DELAWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
STYROCHEM U.S., LTD.
By: StyroChem GP, L.L.C.,
its general partner,
By: Radnor Chemical Corporation,
its sole member,
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
STYROCHEM GP, L.L.C.
By: Radnor Chemical Corporation,
its sole member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
STYROCHEM LP, L.L.C.
By: Radnor Chemical Corporation,
its sole member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
30
WINCUP EUROPE DELAWARE, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
WINCUP GP, L.L.C.
By: WinCup Holdings, Inc.,
its sole member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Finance
WINCUP LP, L.L.C.
By: WinCup Holdings, Inc.,
its sole member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Finance
WINCUP TEXAS, LTD.
By: WinCup GP, L.L.C.,
its general partner,
By: WinCup Holdings, Inc.
its sole member
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Finance
WINCUP HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President Finance
31
DEUTSCHE BANK SECURITIES INC.
UBS WARBURG LLC
FLEET SECURITIES, INC.
PNC CAPITAL MARKETS, INC.
By: Deutsche Bank Securities Inc.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Director
32
