EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of April 7, 2004
by and among
AEARO COMPANY I,
THE SUBSIDIARY GUARANTORS
named herein
and
DeutschE BANK SECURITIES Inc., and
BEAR, XXXxXXX & CO., Inc.
as Initial Purchasers
---------------------------
$175,000,000
8 1/4% SENIOR SUBORDINATED NOTES DUE 2012
TABLE OF CONTENTS
Page
1. Definitions............................................................1
2. Exchange Offer.........................................................4
3. Shelf Registration.....................................................8
4. Additional Interest....................................................9
5. Registration Procedures...............................................10
6. Registration Expenses.................................................20
7. Indemnification.......................................................21
8. Rules 144 and 144A....................................................24
9. Underwritten Registrations............................................24
10. Miscellaneous.........................................................24
(a) No Inconsistent Agreements.....................................24
(b) Adjustments Affecting Registrable Notes........................24
(c) Amendments and Waivers.........................................25
(d) Notices........................................................25
(e) Successors and Assigns.........................................26
(f) Counterparts...................................................26
(g) Headings.......................................................27
(h) Governing Law..................................................27
(i) Severability...................................................27
(j) Notes Held by the Company or Its Affiliates....................27
(k) Third Party Beneficiaries......................................27
(l) Entire Agreement...............................................27
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into as of April 7, 2004 by and among Aearo Company I, a Delaware
corporation (the "Company"), each of the subsidiary guarantors listed on the
signature pages hereto (collectively, the "Subsidiary Guarantors") and Deutsche
Bank Securities Inc. and Bear, Xxxxxxx & Co., Inc. (collectively, the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated April 1, 2004, by and among the Company, the Subsidiary
Guarantors and the Initial Purchasers (the "Purchase Agreement") relating to the
sale by the Company to the Initial Purchasers of $175,000,000 aggregate
principal amount of the Company's 8 1/4% Senior Subordinated Notes due 2012 (the
"Notes") and the guarantees thereof of the Subsidiary Guarantors. The Company
and the Subsidiary Guarantors are collectively referred to herein as the
"Issuers." In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company and the Subsidiary Guarantors have agreed to provide the
registration rights set forth in this Agreement for the benefit of the holders
of Registrable Notes (as defined herein), including, without limitation, the
Initial Purchasers. The execution and delivery of this Agreement is a condition
to the Initial Purchasers' obligation to purchase the Notes 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).
Advice: See the last paragraph of Section 5.
Agreement: See the first introductory paragraph to this Agreement.
Applicable Period: See Section 2(b).
Business Day: A day that is not a Saturday, a Sunday, or a day on which
banking institutions in New York, New York are required to be closed.
Closing Date: The Closing Date as defined in the Purchase Agreement.
Company: See the first introductory paragraph to this Agreement.
Effectiveness Date: The 180th day after the Issue Date; provided,
however, that with respect to any Shelf Registration, the Effectiveness Date
shall be the 180th day after the Filing Date with respect thereto; provided,
however, that if the Effectiveness Date would otherwise fall on a day that is
not a Business Day, then the Effectiveness Date shall be the next succeeding
Business Day.
Effectiveness Period: See Section 3(a).
Event Date: See Section 4(b).
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).
Exchange Offer: See Section 2(a).
Exchange Registration Statement: See Section 2(a).
Filing Date: (A) If no Exchange Registration Statement has been filed
by the Issuers pursuant to this Agreement, the 120th day after the Issue Date;
and (B) with respect to a Shelf Registration, the 120th day after the delivery
of a Shelf Notice as required pursuant to Section 2(c) hereof; provided,
however, that if the Filing Date would otherwise fall on a day that is not a
Business Day, then the Filing Date shall be the next succeeding Business Day.
Holder: Any registered holder of Registrable Notes.
Indemnified Person: See Section 7(c).
Indemnifying Person: See Section 7(c).
Indenture: The Indenture, dated as of April 7, 2004, by and among the
Issuers and X.X. Xxxxxx Trust Company, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
Initial Purchasers: See the first introductory paragraph to this
Agreement.
Initial Shelf Registration: See Section 3(a).
Inspectors: See Section 5(o).
Issue Date: The date on which the original Notes were sold to the
Initial Purchasers pursuant to the Purchase Agreement.
Issuers: See the second introductory paragraph to this Agreement.
NASD: National Association of Securities Dealers, Inc.
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Notes: See the second introductory paragraph to this Agreement.
Participant: See Section 7(a).
Participating Broker-Dealer: See Section 2(b).
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: See Section 2(b).
Private Exchange Notes: See Section 2(b).
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 amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Notes covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference in such Prospectus.
Purchase Agreement: See the second introductory paragraph to this
Agreement.
Records: See Section 5(o).
Registrable Notes: Each Note upon original issuance thereof and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof
is applicable upon original issuance thereof and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until, in the case of any such Note, Exchange Note or
Private Exchange Note, as the case may be, the earliest to occur of (i) a
Registration Statement (other than, with respect to any Exchange Note as to
which Section 2(c)(iv) hereof is applicable, the Exchange Registration
Statement) covering such Note, Exchange Note or Private Exchange Note, as the
case may be, has been declared effective by the SEC and such Note, Exchange Note
or Private Exchange Note, as the case may be, has been disposed of in accordance
with such effective Registration Statement, (ii) such Note, Exchange Note or
Private Exchange Note, as the case may be, is sold in compliance with Rule 144,
(iii) in the case of any Note, such Note has been exchanged pursuant to the
Exchange Offer for an Exchange Note or Exchange Notes which may be resold
without restriction under state and federal securities laws, or (iv) such Note,
Exchange Note or Private Exchange Note, as the case may be, ceases to be
outstanding for purposes of the Indenture.
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Registration Statement: Any registration statement of the Issuers,
including, but not limited to, the Exchange Registration Statement, that covers
any of the Registrable Notes 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 in such registration statement.
Rule 144: Rule 144 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 offers and sales of
securities made in compliance 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 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 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 Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c).
Shelf Registration: See Section 3(b).
Subsequent Shelf Registration: See Section 3(b).
Subsidiary Guarantors: See the first introductory paragraph to this
Agreement.
Suspension Notice: See Section 5.
Suspension Period: See Section 5(k).
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
Underwritten registration or underwritten offering: A registration in
which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
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2. Exchange Offer
(a) Unless it would violate applicable law or any applicable
interpretation of the staff of the SEC, each of the Issuers agrees to file with
the SEC no later than the Filing Date, a Registration Statement on an
appropriate form (the "Exchange Registration Statement") with respect to a
registered offer to exchange (the "Exchange Offer") any and all of the
Registrable Notes (other than Private Exchange Notes, if any) for a like
aggregate principal amount of notes of the Company, guaranteed by the Subsidiary
Guarantors that are identical in all material respects to the Notes (the
"Exchange Notes") (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), except that the Exchange Notes shall have been
registered pursuant to an effective Registration Statement under the Securities
Act and shall contain no restrictive legend thereon or Additional Interest
provisions. The Exchange Offer shall be registered under the Securities Act and
shall comply with all applicable tender offer rules and regulations under the
Exchange Act. Each of the Issuers agrees to use its commercially reasonable
efforts to (x) cause the Exchange Registration Statement to be declared
effective under the Securities Act on or before the Effectiveness Date; (y) keep
the Exchange Offer open for at least 20 Business Days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
Holders; and (z) consummate the Exchange Offer on or prior to the 35th day
following the date on which the Exchange Registration Statement is declared
effective. If after such Exchange Registration Statement is initially declared
effective by the SEC, the Exchange Offer or the issuance of the Exchange Notes
thereunder is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such Exchange
Registration Statement shall be deemed not to have become effective for purposes
of this Agreement. Each Holder who participates in the Exchange Offer will be
required to represent to the Company in writing (which may be contained in the
applicable letter of transmittal) that (i) any Exchange Notes 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 of the Exchange
Notes, (iii) such Holder is not an affiliate of any of the Issuers within the
meaning of the Securities Act, (iv) neither such Holder nor, to the actual
knowledge of such Holder, any other Person receiving Exchange Notes from such
Holder is engaging in or intends to engage in a distribution of the Exchange
Notes, (v) it is not acting, to the actual knowledge of such Holders, on behalf
of any Person who could not make the representations contained in clauses (i)
through (iv) above, and (vi) if such Holder is a Participating Broker-Dealer,
such Holder has acquired the Registrable Notes as a result of market-making
activities or other trading activities and that it will comply with the
applicable provisions of the Securities Act (including, but not limited to, the
prospectus delivery requirements thereunder). Each such Holder shall also have
made such other representations as may be reasonably necessary under the
applicable SEC rules, regulations or interpretations to render the use of Form
S-4 or another appropriate form under the Securities Act available. 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 Notes that are Private Exchange Notes and Exchange
Notes held by Participating Broker-Dealers, and the Issuers shall have no
further obligation to register Registrable Notes (other than Private Exchange
Notes and other than in respect of any Exchange Notes as to which clause
2(c)(iv) hereof applies) pursuant to Section 3 of this Agreement.
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(b) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange
Notes received by such broker-dealer in the Exchange Offer (a "Participating
Broker-Dealer"), whether such positions or policies have been publicly
disseminated by the Staff of the SEC or such positions or policies, in the
judgment of the Initial Purchasers, represent the prevailing views of the Staff
of the SEC. Such "Plan of Distribution" section shall also allow, to the extent
permitted by applicable policies and regulations of the SEC, the use of the
Prospectus by all Persons subject to the prospectus delivery requirements of the
Securities Act, including, to the extent so permitted, all Participating
Broker-Dealers, and include a statement describing the manner in which
Participating Broker-Dealers may resell the Exchange Notes.
Each of the Issuers shall use its commercially reasonable efforts to
keep the Exchange 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 such Persons must
comply with such requirements in order to resell the Exchange Notes, provided
that such period shall not exceed 180 days after the Exchange Registration
Statement is declared effective (or such longer period if extended pursuant to
the last paragraph of Section 5) (the "Applicable Period").
If, upon consummation of the Exchange Offer, the Initial Purchasers
hold any Notes acquired by them that have the status of an unsold allotment in
the initial distribution, the Company upon the request of the Initial Purchasers
shall, simultaneously with the delivery of the Exchange Notes in the Exchange
Offer, issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for the Notes held by the Initial Purchasers, a like principal amount
of notes of the Company, guaranteed by the Subsidiary Guarantors, that are
identical in all material respects to the Exchange Notes except for the
existence of restrictions on transfer thereof under the Securities Act and
securities laws of the several states of the U.S. and which shall not contain
any Additional Interest provisions (the "Private Exchange Notes") (and which are
issued pursuant to the same indenture as the Exchange Notes). The Private
Exchange Notes shall bear the same CUSIP number as the Exchange Notes. Interest
on the Exchange Notes and Private Exchange Notes will accrue from the last
interest payment date on which interest was paid on the Notes surrendered in
exchange therefor or, if no interest has been paid on the Notes, from the Issue
Date.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder of record
entitled to participate in the Exchange Offer a copy of the Prospectus
forming part of the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(2) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York, which may be the Trustee or an affiliate thereof;
(3) permit Holders to withdraw tendered Registrable Notes at
any time prior to the close of business, New York time, on the last
business day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all
applicable laws.
As soon as practicable after the close of the Exchange Offer
or the Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered
and not validly withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder tendering such Registrable Notes, Exchange Notes or Private
Exchange Notes, as the case may be, equal in principal amount to the
Notes of such Holder so accepted for exchange; provided that, in the
case of any Notes held in global form by a depositary, authentication
and delivery to such depositary of one or more replacement Notes in
global form in an equivalent principal amount thereto for the account
of such Holders in accordance with the Indenture shall satisfy such
authentication and delivery requirement.
The Exchange Notes and the Private Exchange Notes may be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event will provide that the Exchange
Notes will not be subject to the transfer restrictions set forth in the
Indenture and that the Exchange Notes, the Private Exchange Notes and the Notes,
if any, will vote and consent together on all matters as one class and that none
of the Exchange Notes, the Private Exchange Notes or the Notes, if any, will
have the right to vote or consent as a separate class on any matter.
(c) If, (i) because of any change in law or in currently
prevailing interpretations of the staff of the SEC, the Issuers are not
permitted to effect an Exchange Offer, (ii) the Exchange Offer is not
consummated within 210 days of the Issue Date, (iii) any holder of Private
Exchange Notes so requests in writing to the Issuers or (iv) in the case of any
Holder that participates in the Exchange Offer (and tenders its Registrable
Notes prior to the expiration thereof), such Holder does not receive Exchange
Notes 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 any of the Issuers within the meaning of the
Securities Act) and so notifies the Company within 20 days after consummation of
the Exchange Offer, then in each such case, the Issuers will (x) promptly
deliver to the Holders and the Trustee written notice thereof (the "Shelf
Notice") and (y) at the Issuers' sole expense, file a Shelf Registration
pursuant to Section 3.
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3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section
2(c), then:
(a) Shelf Registration. The Issuers shall as promptly as
reasonably practicable after the delivery of the Shelf Notice 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 Notes (the "Initial Shelf
Registration"). If the Issuers shall not have yet filed the Exchange
Registration Statement, each of the Issuers shall use its commercially
reasonable efforts to file with the SEC the Initial Shelf Registration on or
prior to the Filing Date and shall use its commercially reasonable efforts to
cause such Initial Shelf Registration to be declared effective under the
Securities Act on or prior to the Effectiveness Date. Otherwise, each of the
Issuers shall use its commercially reasonable efforts to file with the SEC the
Initial Shelf Registration within 90 days of the delivery of the Shelf Notice
and shall use its commercially reasonable efforts to cause such Shelf
Registration to be declared effective under the Securities Act as promptly as
practicable thereafter. The Initial Shelf Registration shall be on Form S-1 or
another appropriate form permitting registration of such Registrable Notes for
resale by Holders in the manner or manners designated by them (including,
without limitation, one or more underwritten offerings). The Issuers shall not
permit any securities other than the Registrable Notes to be included in any
Shelf Registration (as defined below). The Issuers shall use their commercially
reasonable efforts to keep the Initial Shelf Registration continuously effective
under the Securities Act until the date that is two years after the Issue Date
or such shorter period ending when (i) all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration or (ii) a Subsequent Shelf
Registration covering all of the Registrable Notes has been declared effective
under the Securities Act (the "Effectiveness Period"); provided, however, that
no Holder shall be entitled to be named as a selling securityholder in the Shelf
Registration or to use the Prospectus forming a part thereof for resales of
Registrable Notes unless such Holder has provided the Issuers, within five
Business Days after receipt of a request therefor, with the information required
by the first two paragraphs which follow Section 5(u), as applicable; and
provided further, that the Effectiveness Period in respect of the Initial Shelf
Registration shall be extended to the extent required to permit dealers to
comply with the applicable prospectus delivery requirements of Rule 174 under
the Securities Act and as otherwise provided herein and shall be subject to
reduction to the extent that the applicable provisions of Rule 144(k) are
amended or revised to reduce the two year holding period set forth therein.
(b) Subsequent Shelf Registrations. If the Initial Shelf
Registration or any Subsequent Shelf Registration 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), each of the Issuers shall
use its commercially reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 30
days of such cessation of effectiveness amend the Shelf Registration 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 Registrable Notes ("Subsequent Shelf Registration") covered by but
not sold under the Initial Shelf Registration or an earlier Subsequent Shelf
Registration. If a Subsequent Shelf Registration is filed, each of the Issuers
shall use its commercially reasonable efforts to cause the Subsequent Shelf
Registration to be declared effective as soon as practicable after such filing
and to keep such Subsequent Shelf Registration continuously effective for a
period equal to the number of days in the Effectiveness Period less the
aggregate number of days during which the Initial Shelf Registration or any
Subsequent Shelf Registrations was previously continuously effective. As used
herein the term "Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration.
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(c) Supplements and Amendments. The Issuers shall promptly
supplement and amend any Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act.
4. Additional Interest
(a) The Issuers and the Initial Purchasers agree that the
Holders of Registrable Notes 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,
additional interest on the Notes ("Additional Interest") under the circumstances
and to the extent set forth below (each of which shall be given independent
effect):
(i) if (A) neither the Exchange Registration Statement nor the
Initial Shelf Registration has been filed on or prior to 120 days after
the Issue Date, or (B) notwithstanding that the Company has consummated
or will consummate an Exchange Offer, the Company is required to file a
Shelf Registration and such Shelf Registration is not filed on or prior
to the 90th day after the delivery of a Shelf Notice, then commencing
on the day after either such required Filing Date, Additional Interest
shall accrue on the Notes over and above the stated interest at a rate
of 0.25% per annum for the first 90 days immediately following the
Filing Date, such Additional Interest rate increasing by an additional
0.25% per annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Registration Statement nor
the Initial Shelf Registration is declared effective on or prior to 180
days after the Issue Date or (B) notwithstanding that the Company has
consummated or will consummate an Exchange Offer, the Company is
required to file a Shelf Registration and such Shelf Registration is
not declared effective by the SEC or prior to the 180th day following
the date such Shelf Registration was filed, then commencing on the day
after the Effectiveness Date, Additional Interest shall accrue on the
Notes over and above the stated interest at a rate of 0.25% per annum
for the first 90 days immediately following the day after the
Effectiveness Date, such Additional Interest rate increasing by an
additional 0.25% per annum at the beginning of each subsequent 90-day
period; and
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(iii) if (A) the Issuers have not consummated the Exchange
Offer within 210 days from the Issue Date or (B) if applicable, a Shelf
Registration has been declared effective and such Shelf Registration
ceases to be effective at any time prior to the second anniversary of
the Issue Date (other than after such time as all Notes have been
disposed of thereunder) and is not replaced within 60 days by an
Additional Shelf Registration that is filed and declared effective,
then Additional Interest shall accrue on the Notes over and above the
stated interest at a rate of 0.25% per annum for the first 90 days
commencing on the (x) 36th day after such effective date in the case of
(A) above or (y) the day such Shelf Registration ceases to be effective
in the case of (B) above, such Additional Interest rate increasing by
an additional 0.25% per annum at the beginning of each such subsequent
90-day period;
provided, however, that the Additional Interest rate on the Notes may not accrue
under more than one of the foregoing clauses (i) through (iii) at any one time
and at no time shall the aggregate amount of Additional Interest accruing exceed
in the aggregate 0.75% per annum; provided, further, however, that (1) upon the
filing of the Exchange Registration Statement or the Initial Shelf Registration
(in the case of (i) above), (2) upon the effectiveness of the Exchange
Registration Statement or the Initial Shelf Registration (in the case of (ii)
above), or (3) upon the exchange of Exchange Notes for all Notes tendered (in
the case of (iii)(A) above) or upon the effectiveness of a Shelf Registration
which had ceased to remain effective (in the case of (iii)(B) above), Additional
Interest on the Notes as a result of such clause (or the relevant subclause
thereof), as the case may be, shall cease to accrue and the interest rate borne
by the Registrable Notes shall be reduced to the original interest rate.
(b) The Issuers shall notify the Trustee within one Business
Day after each and every date on which an event occurs in respect of which
Additional Interest is required to be paid (an "Event Date"). Any amounts of
Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section
4 will be payable in cash semi-annually on each regular interest payment date
specified in the Indenture (to the Holders of record on the regular record date
therefor (specified in the Indenture) immediately preceding such dates),
commencing with the first such regular interest payment 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, 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 the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 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:
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(a) Prepare and file with the SEC prior to the Filing Date,
the Exchange Registration Statement or if the Exchange Registration
Statement is not filed, a Shelf Registration as prescribed by Section 2
or 3, and use their commercially reasonable efforts to cause each such
Registration Statement to become effective and remain effective as
provided herein; provided that, if (1) a Shelf Registration is filed
pursuant to Section 3, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period and has
advised the Company in writing that it is a Participating Broker
Dealer, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, the Issuers shall, if requested,
furnish to and afford the Holders of the Registrable Notes to be
registered pursuant to such Shelf Registration or each such
Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at
least five business days prior to such filing or such other date as is
reasonable under the circumstances). The Issuers shall not file any
such Registration Statement or Prospectus or any amendments or
supplements thereto if the Holders of a majority in aggregate principal
amount of the Registrable Notes covered by such Registration Statement,
their counsel, or the managing underwriters, if any, shall reasonably
object on a timely basis; provided, however, that if the Company's
failure to file a Registration Statement or Prospectus, or any
amendments or supplements thereto, in the applicable time periods as
set forth in Section 4 hereof, is based solely upon such an objection,
then the applicable time periods as set forth in Section 4 hereof shall
be extended by an additional 30 days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration or Exchange
Registration Statement, as the case may be, as may be necessary to keep
such Registration Statement continuously effective for the
Effectiveness Period, the Applicable Period or until consummation of
the Exchange Offer, 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 (or any
similar provisions then in force) under the Securities Act; 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.
-11-
(c) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period from whom the Issuers have
received written notice that it will be a Participating Broker-Dealer
in the Exchange Offer, notify the selling Holders of Registrable Notes
who have provided the information to the Issuers as required by the
paragraphs following Section 5(u) hereof, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly, and confirm such notice in writing, (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,
(ii) of the issuance by the SEC of any stop order suspending the
effectiveness of a Registration Statement or of any order preventing or
suspending the use of any 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 Notes the representations and
warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(n) hereof cease to be
true and correct, (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 Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation
or, if actually known by the Issuers, threatening of any proceeding for
such purpose, (v) of the happening of any event, the existence of any
condition 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 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 light of the circumstances under which they were made, not
misleading, and (vi) of any of the Issuers' reasonable determination
that a post-effective amendment to a Registration Statement would be
appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, use its commercially
reasonable 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 Notes or the
Exchange Notes to be sold by any Participating Broker-Dealer, for sale
in any jurisdiction, and, if any such order is issued, to use its
commercially reasonable efforts to obtain the withdrawal of any such
order at the earliest practicable date.
-12-
(e) If a Shelf Registration is filed pursuant to Section 3 and
if requested during the Effectiveness Period by the managing
underwriters, if any, or the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold in connection with
an underwritten offering, (i) promptly as practicable include in a
prospectus supplement or post-effective amendment such information or
revisions to information therein relating to such Underwriters or
selling Holders as the managing underwriters, if any, or such Holders
or their counsel reasonably request to be included or made therein, in
each case relating solely to such parties, (ii) make all required
filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Issuers have received notification of
the matters to be included in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to
such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, furnish to each selling
Holder of Registrable Notes and to each such Participating
Broker-Dealer who so requests and to counsel and each managing
underwriter, if any, without charge, one conformed copy of the
Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated by reference
and all exhibits.
(g) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, deliver to each selling
Holder of Registrable Notes who have provided the information to the
Issuers as required by the paragraphs following Section 5(u), or each
such Participating Broker-Dealer, as the case may be, their respective
counsel, and the underwriters, if any, without charge, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5, each
Issuer hereby consents to the use of such Prospectus and each amendment
or supplement thereto by each of the selling Holders of Registrable
Notes 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 Notes covered by, or the
sale by Participating Broker-Dealers of the Exchange Notes pursuant to,
such Prospectus and any amendment or supplement thereto.
-13-
(h) Prior to any public offering of Registrable Notes or any
delivery of a Prospectus contained in the Exchange Registration
Statement by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, to use its commercially reasonable
efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer,
as the case may be, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or
exemption from such registration or qualification) of such Registrable
Notes or Exchange Notes, as the case may be, 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, if any, reasonably request in
writing; provided that where Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are offered pursuant to an
underwritten offering, counsel to the underwriters shall, at the cost
and expense of the Issuers, perform the 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 to enable the disposition in such
jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Registrable Notes covered by the applicable
Registration Statement; provided that none of the Issuers shall be
required to (A) qualify generally to do business in any jurisdiction
where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where
it is not then so subject or (C) subject itself to taxation in excess
of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3,
cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
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 Notes to be in such denominations
(subject to applicable requirements contained in the Indenture) and
registered in such names as the managing underwriter or underwriters,
if any, or Holders may reasonably request.
(j) Use its commercially reasonable efforts to cause the
Registrable Notes covered by the Registration Statement to be
registered with or approved by such governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
or the underwriters, if any, to consummate the disposition of such
Registrable Notes, except as may be required solely as a consequence of
the nature of such selling Holder's business, in which case each of the
Issuers will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals;
provided that none of the Issuers shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so
qualified, (B) take any action that would subject it to general service
of process in any such jurisdiction where it is not then so subject or
(C) subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction where it is not then so subject.
-14-
(k) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, upon the occurrence of any
event contemplated by paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file with
the SEC, at the joint and several expense of each 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 Initial
Purchasers of the Registrable Notes being sold thereunder or to the
Initial Purchasers of the Exchange Notes to whom such Prospectus will
be delivered by a Participating Broker-Dealer, any such Prospectus will
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, none of the
Issuers shall be required to amend or supplement a Registration
Statement, any related Prospectus or any document incorporated therein
by reference, in the event that, and for one or more periods that in
the aggregate shall not exceed 60 days in any 365-day period (a
"Suspension Period") if (i) an event occurs and is continuing as a
result of which the Shelf Registration would, in such Issuer's good
faith judgment, contain an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein not misleading, or (ii) (a) such Issuer determines in its good
faith judgment that the disclosure of such event at such time would
have a material adverse effect on the business, operations or business
prospects of the Company or (b) the disclosure otherwise relates to a
pending material business transaction that has not yet been publicly
disclosed and such suspension shall not give rise to any right to
receive Additional Interest pursuant to Section 4.
(l) Use its commercially reasonable efforts to cause the
Registrable Notes covered by a Registration Statement to be rated with
the appropriate rating agencies, if so requested by the Holders of a
majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration
Statement relating to the Registrable Notes, (i) provide the Trustee
with printed certificates for the Registrable Notes in a form eligible
for deposit with The Depository Trust Company and (ii) provide a CUSIP
number for the Registrable Notes.
-15-
(n) In connection with an underwritten offering of Registrable
Notes pursuant to a Shelf Registration, enter into an underwriting
agreement as is customary in underwritten offerings of debt securities
similar to the Notes and take all such other actions as are reasonably
requested by the managing underwriter or underwriters in order to
expedite or facilitate the registration or the disposition of such
Registrable Notes and, in such connection, (i) make such
representations and warranties to the underwriters, with respect to the
business of the Issuers and their respective subsidiaries 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 in connection with securities
offerings by any of the Issuers, and confirm the same in writing if and
when requested; (ii) obtain the opinion of counsel to the Issuers and
updates thereof in form and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings of debt securities similar to the Notes and such
other matters as may be reasonably requested by underwriters; (iii)
obtain "cold comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriter or underwriters
from the independent certified public accountants of the Issuers (and,
if necessary, any other independent certified public accountants of any
subsidiary of any of the Issuers or of any business acquired by any of
the Issuers for which financial statements and financial data are, or
are required to be, included in the Registration Statement), addressed
to each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of debt securities
similar to the Notes and such other matters as reasonably requested by
the managing underwriter or underwriters; provided that no such comfort
letter shall be required to be addressed to any underwriter unless such
underwriter provides such letters of representations to such
accountants as, in each case, are in form and substance acceptable to
such accountants; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification 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 Notes 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. The above shall be done at each closing under such
underwriting agreement, or as and to the extent required thereunder.
-16-
(o) If (1) a Shelf Registration is filed pursuant to Section
3, or (2) a Prospectus contained in an Exchange Registration Statement
filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, make available for
inspection by any selling Holder of such Registrable Notes being sold
who has provided the information to the Company as required by the
paragraphs following Section 5(u) hereof, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any
such disposition of Registrable Notes, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each
such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), upon written request, at the offices
where normally kept, during normal business hours and upon reasonable
advance notice, all pertinent financial and other records, pertinent
corporate documents and instruments of the Issuers and their respective
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities under the Securities Act, and cause the officers,
directors and employees of the Issuers and their respective
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such due diligence responsibilities;
provided, however, that each Inspector shall agree in writing that it
will keep the Records confidential and that it will not disclose any of
the Records that the Company determines, in good faith, to be
confidential, unless (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 (subject
to the requirements of such subpoena or other order), (iii) the
information in such Records has been made generally available to the
public other than as a result of a disclosure or failure to safeguard
by such Inspector or an "affiliate" (as defined in Rule 405) thereof,
or (iv) disclosure of such information is, in the opinion of counsel
for any Inspector, necessary in connection with any action, claim, suit
or proceeding, directly or indirectly, involving or potentially
involving such Inspector and arising out of, based upon, related to, or
involving this Agreement, or any transactions contemplated hereby or
arising hereunder. Each selling Holder of such Registrable Notes and
each such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Issuers unless and until
such is made generally available to the public. Each selling Holder of
such Registrable Notes and each such Participating Broker-Dealer will
be required to further agree that it will, (i) upon learning that
disclosure of such Records or Information is sought in a court of
competent jurisdiction, give notice to the Issuers and allow the
Issuers to undertake appropriate action to prevent disclosure of the
Records or Information deemed confidential at their expense, and (ii)
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 the rights and
interests of the Holder or any Inspector.
-17-
(p) Provide an indenture trustee for the Registrable Notes or
the Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a), as the case may be, to be
qualified under the TIA not later than the effective date of the
Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the
trustee under any such indenture to effect such changes (if any) 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
commercially reasonable 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) Comply with all applicable rules and regulations of the
SEC and make generally available to its securityholders with regard to
any applicable Registration Statement a consolidated earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) 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 Notes 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.
-18-
(r) Upon consummation of the Exchange Offer or a Private
Exchange, if so requested by the Trustee, 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
Notes participating in the Exchange Offer or the Private Exchange, as
the case may be, that the Exchange Notes or the Private Exchange Notes,
as the case may be, and the related indenture constitute legally valid
and binding obligations of each of the Issuers, enforceable against
each of the Issuers in accordance with its 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 Notes by Holders to the
Issuers (or to such other Person as directed by the Issuers) in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be, the Issuers shall xxxx, or caused to be marked, on such
Registrable Notes that such Registrable Notes are being cancelled in
exchange for the Exchange Notes or the Private Exchange Notes, as the
case may be; in no event shall such Registrable Notes be marked as paid
or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by
any Registration Statement and each underwriter, if any, participating
in the disposition of such Registrable Notes and their respective
counsel in connection with any filings required to be made with the
NASD.
(u) Use its commercially reasonable efforts to take all other
steps reasonably necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby.
No Holder of Registrable Notes as to which any registration is
being effected may include any such Registrable Notes in any Shelf Registration
pursuant to this Agreement unless and until such Holder furnishes to the Issuers
in writing such information regarding such seller and the distribution of such
Registrable Notes as the Issuers may, from time to time, reasonably request. The
Issuers may exclude from such registration the Registrable Notes of any seller
who fails to furnish such information within a reasonable time (but no later
than five Business Days) after receiving such request. Each seller as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers by such seller not materially
misleading.
-19-
In the event of a Shelf Registration, in addition to the
information required to be provided by each selling Holder in accordance with
the preceding paragraph, the Issuers may require such selling Holder to furnish
to the Issuers such additional information regarding such selling Holder and
such selling Holder's intended method of distribution of Registrable Notes as
may be required in order to comply with the Securities Act. Each such selling
Holder agrees to notify the Issuers as promptly as reasonably practicable of any
inaccuracy or change in information previously furnished by such selling Holder
to the Issuers or of the occurrence of any event in either case as a result of
which any prospectus relating to such Shelf Registration contains or would
contain an untrue statement of a material fact regarding such selling Holder or
such selling Holder's intended method of disposition of such Registrable Notes
or omits to state any material fact regarding such selling Holder or such
selling Holder's intended method of disposition of such Registrable Notes
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made, and as
promptly as reasonably practicable to furnish to the Issuers any additional
information required to correct and update any previously furnished information
or required so that such prospectus shall not contain, with respect to such
selling Holder or the disposition of such Registrable Notes, an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon receipt of any notice from the Issuers of the happening of any event of the
kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) or upon
receipt of notice (a "Suspension Notice") of a Suspension Period, such Holder
will forthwith discontinue disposition of such Registrable Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be, and, in each case,
dissemination of such Prospectus until such Holder's or Participating
Broker-Dealer's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(k), or until it is advised in writing (the "Advice")
by the Issuers that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. If requested in
writing by the Issuers, such Holder or Participating Broker-Dealer, as the case
may be, will, to the extent reasonably practicable, deliver to the Issuers all
copies in its possession, other than permanent file copies then in the
possession of such Holder or Participating Broker-Dealer, of the Prospectus
covering such Registrable Notes current at the time of receipt of such notice.
If the Issuers shall give any such notice to suspend the disposition of
Registrable Notes pursuant to a Registration Statement as a result of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iv),
5(c)(v) or 5(c)(vi) or upon receipt of a Suspension Notice, the Issuers shall be
deemed to have used their commercially reasonable efforts to keep the
Registration Statement effective during such period of suspension provided that
the Issuers shall use their commercially reasonable efforts to file and have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Registration Statement.
-20-
In the event the Issuers 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 Notes
covered by such Registration Statement or Exchange Notes 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) 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 by the Issuers,
jointly and severally, whether or not the Exchange Offer or a Shelf Registration
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 one counsel in connection with Blue Sky qualifications of the
Registrable Notes or Exchange Notes and determination of the eligibility of the
Registrable Notes or Exchange Notes for investment under the laws of such
jurisdictions (x) where the holders of Registrable Notes are located, in the
case of the Exchange Notes, or (y) as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Notes or
Exchange Notes 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, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration
Statement or in respect of Registrable Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, as the case may be,
(iii) reasonable messenger, telephone and delivery expenses incurred in
connection with the Exchange Registration Statement and any Shelf Registration
Statement, (iv) fees and disbursements of counsel for the Issuers and, in the
case of a Shelf Registration, reasonable fees and disbursements of one special
counsel for the sellers of Registrable Notes (subject to the provisions of
Section 6(b)), (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(n)(iii) (including, without limitation, the
expenses of any special audit and "cold comfort" letters reasonably required by
or incident to such performance), (vi) rating agency fees, (vii) Securities Act
liability insurance, if the Issuers desire such insurance, (viii) fees and
expenses of all other Persons retained by the Issuers, (ix) internal expenses of
the Issuers (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 and (xii) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, securities
sales agreements, indentures and any other documents necessary in order to
comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the
Issuers, jointly and severally, shall reimburse the Holders of the Registrable
Notes being registered in such registration for the fees and disbursements of
not more than one counsel (in addition to appropriate local counsel) chosen by
the Holders of a majority in aggregate principal amount of the Registrable Notes
to be included in such Shelf Registration and other out-of-pocket expenses of
Holders of Registrable Notes incurred in connection with the registration and
sale of Registrable Notes.
-21-
7. Indemnification
(a) Each of the Issuers, jointly and severally, agrees to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
the officers and directors of each such Person, and each Person, if any, who
controls any such Person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other reasonable expenses
actually incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus (as amended or supplemented if the Issuers shall have
furnished any amendments or supplements thereto) or caused by, arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
insofar as such losses, claims, damages or liabilities are caused by any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with information relating to any Participant furnished to
the Issuers in writing by or on behalf of such Participant expressly for use
therein.
(b) Each Participant will be required to agree, severally and
not jointly, to indemnify and hold harmless the Issuers, their respective
directors and officers and each Person who controls any of the Issuers within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Issuers to each
Participant, but only with reference to information relating to such Participant
furnished to the Issuers in writing by such Participant expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. The liability of any Participant under this
paragraph shall in no event exceed the proceeds received by such Participant
from sales of Registrable Notes or Exchange Notes giving rise to such
obligations.
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(c) If any suit, action, proceeding (including any
governmental or regulatory investigation), claim or demand shall be brought or
asserted against any Person in respect of which indemnity may be sought pursuant
to either of the two preceding paragraphs, such Person (the "Indemnified
Person") shall promptly notify the Person against whom such indemnity may be
sought (the "Indemnifying Person") in writing, and the Indemnifying Person, upon
request of the Indemnified Person, shall retain counsel reasonably satisfactory
to the Indemnified Person to represent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise (unless and only to the extent that such failure
directly results in the loss or compromise of any material rights or defenses by
the Indemnifying Person and the Indemnifying Person was not otherwise aware of
such action or claim). In any such proceeding, any Indemnified Person shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed in writing to the
contrary, (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person or (iii) the
named parties in any such proceeding (including any impleaded parties) include
both the Indemnifying Person and the Indemnified Person and representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that, unless there
is a conflict among Indemnified Persons, the Indemnifying Person shall not, in
connection with any proceeding or related proceeding in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all Indemnified Persons, and that all such fees and
expenses shall be reimbursed as they are incurred. Any such separate firm for
the Participants and such control Persons of Participants shall be designated in
writing by Participants who sold a majority in interest of Registrable Notes
sold by all such Participants and any such separate firm for the Issuers, their
directors, their officers and such control Persons of the Issuers shall be
designated in writing by the Company. The Indemnifying Person shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there is a final non-appealable
judgment for the plaintiff, the Indemnifying Person agrees to indemnify any
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an Indemnified Person shall have requested an Indemnifying Person to reimburse
the Indemnified Person for reasonable fees and expenses actually incurred by
counsel as contemplated by the third sentence of this paragraph, the
Indemnifying Person agrees that it shall be liable for any settlement of any
proceeding effected without its consent if (i) such settlement is entered into
more than 30 days after receipt by such Indemnifying Person of the aforesaid
request and (ii) such Indemnifying Person shall not have reimbursed the
Indemnified Person in accordance with such request prior to the date of such
settlement; provided, however, that the Indemnifying Person shall not be liable
for any settlement effected without its consent pursuant to this sentence if the
Indemnifying Person is contesting, in good faith, the request for reimbursement.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Person is or could have been a
party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement (A) includes an unconditional release of such Indemnified
Person, in form and substance satisfactory to such Indemnified Person, from all
liability on claims that are the subject matter of such proceeding and (B) does
not include any statement as to an admission of fault, culpability or failure to
act by or on behalf of an Indemnified Person.
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(d) If the indemnification provided for in the first and
second paragraphs of this Section 7 is unavailable to, or insufficient to hold
harmless, an Indemnified Person in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such
paragraphs, in lieu of indemnifying such Indemnified Person thereunder and in
order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
(i) the relative benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons on the other from the offering of
the Notes 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 Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omissions (or alleged statements or omissions) that resulted in such losses,
claims, damages or liabilities (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 the Participants on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of discounts
and commissions but before deducting expenses) of the Notes received by the
Issuers bears to the total proceeds received by such Participant from the sale
of Registrable Notes or Exchange Notes, as the case may be. 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 by the Participants or such other Indemnified Person,
as the case may be, on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission and any other equitable considerations appropriate under the
circumstances.
(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 Participants were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(f) The indemnity and contribution agreements contained in
this Section 7 will be in addition to any liability which the Indemnifying
Persons may otherwise have to the Indemnified Persons referred to above.
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8. Rules 144 and 144A
Each of the Issuers covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the SEC thereunder in a timely manner and, if
at any time it is not required to file such reports, it will, upon the written
request of any Holder of Registrable Notes, make available such information as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. Each of the Issuers further covenants that, for so long as any
Registrable Notes remain outstanding, it will take such further action as any
Holder of Registrable Notes may reasonably request, all to the extent required
from time to time to enable such Holder to sell Registrable Notes without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 and Rule 144A under the Securities Act, as such Rules
may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and reasonably acceptable to the
Issuers.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Notes 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) No Inconsistent Agreements. None of the Issuers has
entered, as of the date hereof, and none of the Issuers shall enter, after the
date of this Agreement, into any agreement with respect to any of its securities
that is inconsistent with the rights granted to the Holders of Registrable Notes
in this Agreement or otherwise conflicts with the provisions hereof. None of the
Issuers has entered and none of the Issuers will enter into any agreement with
respect to any of its securities which will grant to any Person piggyback rights
with respect to a Registration Statement.
(b) Adjustments Affecting Registrable Notes. Neither the
Company nor the Subsidiary Guarantors shall, directly or indirectly, take any
action with respect to the Registrable Notes as a class that would adversely
affect the ability of the Holders of Registrable Notes to include such
Registrable Notes in a registration undertaken pursuant to this Agreement.
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(c) 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 (i) the Issuers, and (ii) (A) the Holders of not less
than a majority in aggregate principal amount of the then outstanding
Registrable Notes affected by such amendment, modification, supplement, waiver
or consent to departures from the provisions hereof and (B) in circumstances
that would adversely affect Participating Broker-Dealers, the Participating
Broker-Dealers holding not less than a majority in aggregate principal amount of
the Exchange Notes held by all Participating Broker-Dealers; provided, however,
that no amendment, modification, supplement, waiver or consent to departures
from the provisions of Section 7 and this Section 10(c) shall be effective
against any Holder or Participating Broker-Dealer (including any person who was
a Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes,
as the case may be, disposed of pursuant to any Registration Statement) unless
consented to by such Holder or Participating Broker-Dealer. 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
Notes whose securities are being tendered pursuant to the Exchange Offer or 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
Notes may be given by Holders of at least a majority in aggregate principal
amount of the Registrable Notes being tendered or being sold by such Holders
pursuant to such Registration Statement.
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
1. if to a Holder of Registrable Notes 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 registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Registration Department
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
2. if to the Initial Purchasers, at the address specified in
Section 10(d)(1);
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3. if to an Issuer, as follows:
Aearo Company I
0000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention:
with copies to:
O'Melveny & Xxxxx, LLP
Times Square Tower
0 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx Xxxxxxxxx, Esq.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier guaranteeing
overnight delivery; and when receipt is acknowledged by the addressee, if
telecopied.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee
under the Indenture at the address specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto and the Holders; provided, however, that (i) this Agreement shall not
inure to the benefit of or be binding upon a successor or assign of a Holder
unless and to the extent such successor or assign holds Registrable Notes, and
(ii) nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Notes in violation of the terms of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Registrable Notes, whether by operation of law or otherwise, such Registrable
Notes shall be held subject to all of the terms of this Agreement, and by taking
and holding such Registrable Notes, such person shall be conclusively deemed to
have agreed to be bound by and to perform all of the terms and provisions of
this Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled to
receive the benefits hereof.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. 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.
(i) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Notes Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or its affiliates (as
such term is defined in Rule 405 under the Securities Act) shall not be counted
in determining whether such consent or approval was given by the Holders of such
required percentage.
(k) Third Party Beneficiaries. Holders of Registrable Notes
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.
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S-2IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
AEARO COMPANY I
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
CABOT SAFETY INTERMEDIATE
CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President-Finance
VH INDUSTRIES, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary
S-1
AGREED & ACCEPTED:
Deutsche BanK SECURITIES INC.
bear, xxxxxxx & Co., inc.
BY: DEUTSCHE BANK SECURITIES INC.
By: /s/ Xxxxx Prior
-------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Director
BY: BEAR, XXXXXXX & CO., INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Managing Director
S-2
