EXHIBIT 4.3
VISKASE COMPANIES, INC.
$90,000,000
11-1/2% OF SENIOR SECURED NOTES DUE 2011
REGISTRATION RIGHTS AGREEMENT
June 29, 2004
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Viskase Companies, Inc., a Delaware corporation (the "Company") is issuing
and selling to Xxxxxxxxx & Company, Inc. (the "Initial Purchaser"), upon the
terms set forth in the Purchase Agreement dated as of the date hereof, by and
among the Company and the Initial Purchaser (the "Purchase Agreement"),
$90,000,000 aggregate principal amount of 11-1/2% Senior Secured Notes due 2011
issued by the Company (each, a "Note" and collectively, the "Notes"). As an
inducement to the Initial Purchaser to enter into the Purchase Agreement, the
Company agrees with the Initial Purchaser, for the benefit of the Holders (as
defined below) of the Notes (including, without limitation, the Initial
Purchaser), as follows:
1. DEFINITIONS
Unless otherwise defined herein, capitalized terms that are used herein
without definition shall have the respective meanings ascribed to them in the
Purchase Agreement. As used in this Agreement, the following terms shall have
the following meanings:
ADDITIONAL INTEREST: See Section 4(a).
ADVICE: See Section 6(w).
AGREEMENT: This Registration Rights Agreement, dated as of the date
hereof, between the Company and the Initial Purchaser, as may be amended from
time to time.
APPLICABLE PERIOD: See Section 2(e).
BUSINESS DAY: A day that is not a Saturday, a Sunday or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to be closed.
COLLATERAL AGREEMENTS: Shall have the meaning set forth in the Indenture.
COMPANY: See the introductory paragraph to this Agreement.
DAY: Unless otherwise expressly provided, a calendar day.
EFFECTIVENESS DATE: The 210th day after the Issue Date.
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: 11-1/2% Senior Secured Notes due 2011 of the Company,
identical in all material respects to the Notes, except for references to series
and restrictive legends.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE REGISTRATION STATEMENT: See Section 2(a).
FILING DATE: The 120th day after the Issue Date.
HOLDER: Any registered holder of Registrable Notes, including without
limitation, any Participating Broker-Dealer.
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTY: See Section 8(c).
INDENTURE: The Indenture, dated as of the Issue Date, among the Company
and LaSalle Bank National Association, as trustee, pursuant to which the Notes
are being issued, as amended or supplemented from time to time in accordance
with the terms thereof.
INITIAL PURCHASER: See the introductory paragraph to this Agreement.
INITIAL SHELF REGISTRATION: See Section 3(a).
INSPECTORS: See Section 6(o).
ISSUE DATE: June 29, 2004.
LIEN: Shall have the meaning set forth in the Indenture.
LOSSES: See Section 8(a).
NASD: National Association of Securities Dealers, Inc.
NOTES: See the introductory paragraph to this Agreement.
PARTICIPATING BROKER-DEALER: See Section 2(e).
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PERSON: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm, government or agency or political subdivision
thereof, or other legal entity.
PRIVATE EXCHANGE: See Section 2(f).
PRIVATE EXCHANGE NOTES: See Section 2(f).
PROSPECTUS: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses 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 or deemed to be incorporated by reference in such Prospectus.
PURCHASE AGREEMENT: See the introductory paragraph to this Agreement.
RECORDS: See Section 6(o).
REGISTRABLE NOTES: (i) Notes, (ii) Private Exchange Notes and (iii)
Exchange Notes received in the Exchange Offer, in each case, that may not be
sold without restriction under federal or state securities laws.
REGISTRATION STATEMENT: Any registration statement of the Company filed
with the SEC under the Securities Act (including, but not limited to, the
Exchange Registration Statement, the Shelf Registration and any subsequent Shelf
Registration) 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 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 offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer or 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.
RULE 430A: 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.
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SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Exchange Notes and the Private Exchange Notes.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF NOTICE: See Section 2(j).
SHELF REGISTRATION: See Section 3(b).
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
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 the Company are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) Unless the Exchange Offer would not be permitted by applicable laws
or a policy of the SEC, the Company shall (i) use its reasonable
best efforts to prepare and file with the SEC promptly after the
date hereof, but in no event later than the Filing Date, a
registration statement (the "Exchange Registration Statement") on an
appropriate form under the Securities Act with respect to an offer
(the "Exchange Offer") to the Holders of Notes to issue and deliver
to such Holders, in exchange for the Notes, a like principal amount
of Exchange Notes, (ii) use its reasonable best efforts to cause the
Exchange Registration Statement to become effective as promptly as
practicable after the filing thereof, but in no event later than the
Effectiveness Date, (iii) use its reasonable best efforts to keep
the Exchange Registration Statement effective until the consummation
of the Exchange Offer in accordance with its terms, and (iv)
commence the Exchange Offer and use its reasonable best efforts to
issue on or prior to 45 Days after the date on which the Exchange
Registration Statement is declared effective, Exchange Notes in
exchange for all Notes tendered prior thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other
than (A) that the Exchange Offer does not violate applicable law or
any applicable interpretation of the staff of the SEC, (B) the valid
tendering of Notes in accordance with the terms of the Exchange
Offer, (C) that the Exchange Offer may expire, unless extended by
the Company in its sole discretion, 20 Business Days after the date
notice thereof is mailed to Holders.
(b) The Exchange Notes shall be issued under, and entitled to the
benefits of, (i) the Indenture or a trust indenture that is
identical in all material respects to the Indenture (other than such
changes as are necessary to comply with any
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requirements of the SEC to effect or maintain the qualifications
thereof under the TIA) and (ii) the Collateral Agreements.
(c) Interest on the Exchange Notes and Private Exchange Notes will
accrue from the last interest payment due date in respect of which
interest was paid on the Notes surrendered in exchange therefor; or
if no interest has been paid on the Notes, from the date of original
issue of the Notes. Each Exchange Note and Private Exchange Note
shall bear interest at the rate set forth thereon; provided, that
interest with respect to the period prior to the issuance thereof
shall accrue at the rate or rates borne by the Notes from time to
time during such period.
(d) The Company may require each Holder as a condition to participation
in the Exchange Offer to represent and warrant (i) that any Exchange
Notes received by it will be acquired in the ordinary course of its
business, (ii) that at the time of the commencement and consummation
of the Exchange Offer such Holder has not entered into any
arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the
Exchange Notes in violation of the provisions of the Securities Act,
(iii) that such Holder is not an "affiliate" of the Company within
the meaning of Rule 405 of the Securities Act, or, if it is an
affiliate of the Company, that it will comply with the registration
and prospectus delivery requirements of the Securities Act to the
extent applicable to it, (iv) if such Holder is not a broker-dealer,
that it is not engaged in, and does not intend to engage in, the
distribution of the Notes and (v) if such Holder is a Participating
Broker-Dealer, that such Holder acquired the Notes for its own
account in exchange for Notes that were acquired as a result of
market-making or other trading activities, and that it will deliver
a Prospectus in connection with any resale of the Exchange Notes.
(e) The Company shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution" reasonably acceptable to the Initial Purchaser 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 for its
own account in exchange for Notes that were acquired by it as a
result of market-making or other trading activity (a "Participating
Broker-Dealer"), whether such positions or policies have been
publicly disseminated by the staff of the SEC or such positions or
policies, 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. The Company shall use its reasonable best
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
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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 in no event shall such time period
exceed 180 days unless extended by the Company in its sole
discretion (the "Applicable Period").
(f) If, upon consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Company (upon the written
request from the Initial Purchaser) shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and
deliver to the Initial Purchaser, in exchange (the "Private
Exchange") for the Notes held by the Initial Purchaser, a like
principal amount of Senior Secured Notes 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 United States and the
placement of a restrictive legend thereon (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.
(g) In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an
appropriate letter of transmittal that is an exhibit to the
Exchange Offer Registration Statement, and any related
documents reasonably requested by the Holder;
(ii) keep the Exchange Offer open for not less than the Offer
Period (or longer if required by applicable law)
(iii) utilize the services of a depository 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;
(iv) 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
(v) otherwise comply in all material respects with all applicable
laws.
(h) As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Company shall:
(i) accept for exchange all Registrable Notes validly tendered
pursuant to the Exchange Offer or the Private Exchange, as the
case may be, and not validly withdrawn;
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(ii) deliver to the Trustee for cancellation all Registrable Notes
so accepted for exchange; and
(iii) 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.
(i) 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 (other than such changes as are
necessary to comply with any requirements of the SEC to effect or
maintain the qualification thereof under the TIA), which in either
event will provide that the Exchange Notes will not be subject to
the transfer restrictions or additional interest provisions set
forth in the Indenture, that the Private Exchange Notes will 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 be deemed one class of security (subject to the
provisions of the Indenture) and entitled to participate in all the
security granted by the Company pursuant to the Collateral
Agreements (as such terms are defined in the Indenture) on an equal
and ratable basis.
(j) If: (i) prior to the consummation of the Exchange Offer, the Holders
of a majority in aggregate principal amount of Registrable Notes
determine in its or their reasonable judgment, and the Trustee
provides the Company written notice thereof that (A) the Exchange
Notes would not, upon receipt, be tradable by the Holders thereof,
without restriction under the Securities Act and the Exchange Act
and without material restrictions under applicable Blue Sky or state
securities laws, or (B) the interests of the Holders under this
Agreement, taken as a whole, would be materially adversely affected
by the consummation of the Exchange Offer; (ii) applicable
interpretations of the staff of the SEC would not permit the
consummation of the Exchange Offer prior to the Effectiveness Date;
(iii) subsequent to the consummation of the Private Exchange, any
Holder of Private Exchange Notes so requests in writing; (iv) the
Exchange Offer is not consummated within 45 days from the date that
the Exchange Registration Statement was declared effective; or (v)
in the case of (A) any Holder not permitted by applicable law or SEC
policy to participate in the Exchange Offer, (B) any Holder
participating in the Exchange Offer that receives Exchange Notes
that may not 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 within the meaning of the Securities
Act) or (C) any broker-dealer that holds Notes acquired directly
from the Company or any of its affiliates and, in each such case
contemplated by this clause (v), such Holder provides written notice
to the Company within six months of consummation of the Exchange
Offer, then the Company shall promptly (and in any event within five
Business Days) deliver to the Holders (or in the case of an
occurrence of any event described in clause (v) of this Section
2(j), to any such Holder) and the Trustee notice thereof (the "Shelf
Notice") and shall as promptly as reasonably practicable thereafter
(but in no
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event later than 45 days after delivery of the Shelf Notice) file an
Initial Shelf Registration pursuant to Section 3.
3. SHELF REGISTRATION
If a Shelf Notice is delivered pursuant to Section 2(j), then this Section
3 shall apply to all Registrable Notes. Otherwise, upon consummation of the
Exchange Offer in accordance with Section 2, the provisions of Section 3 shall
apply solely with respect to (i) Notes held by any Holder thereof not permitted
to participate in the Exchange Offer, (ii) Notes held by any broker-dealer that
acquired such Notes directly from the Company or any of its affiliates and (iii)
Exchange Notes that are not freely tradeable as contemplated by Section 2(j)(v)
hereof, provided in each case that the relevant Holder has duly notified the
Company prior to the consummation of the Exchange Offer as required by Section
2(j)(v).
(a) Initial Shelf Registration. The Company shall, as promptly as
practicable, use its reasonable best efforts to 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 Company has not yet filed
an Exchange Registration Statement, the Company shall file with the
SEC the Initial Shelf Registration on or prior to the Filing Date
and shall use its reasonable best efforts to cause such Initial
Shelf Registration to be declared effective under the Securities Act
on or prior to the Effectiveness Date. Otherwise, the Company shall
use its best efforts to file with the SEC the Initial Shelf
Registration within 45 days of the delivery of the Shelf Notice and
shall use its reasonable best efforts to cause such Shelf
Registration to be declared effective under the Securities Act as
promptly as practicable thereafter (but in no event later than 90
days after delivery of the Shelf Notice). 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 reasonably designated by them
(including, without limitation, one or more Underwritten Offerings).
The Company shall not permit any securities other than the
Registrable Notes to be included in any Shelf Registration. The
Company shall use its reasonable best efforts to keep the Initial
Shelf Registration continuously effective under the Securities Act
until the date which is 24 months from the Issue Date (subject to
extension pursuant to the last paragraph of Section 6(w) (the
"Effectiveness Period"), 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 (ii) a Subsequent Shelf Registration covering all
of the Registrable Notes covered by and not sold under the Initial
Shelf Registration or an earlier Subsequent Shelf Registration has
been declared effective under the Securities Act or (iii) there
cease to be any outstanding Registrable Notes.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) ceases to be
effective for any reason at any time during the Effectiveness Period
(other than during any Blackout Period or because of the sale of all
of the securities registered
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thereunder), the Company shall use its reasonable best 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 use its reasonable best efforts to amend
such Shelf Registration in a manner to obtain the withdrawal of the
order suspending the effectiveness thereof, or use its reasonable
best efforts to file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Notes not
already sold under a Shelf Registration (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the
Company shall use its reasonable best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing (but in no event later than the later
of (x) the 90th day following the date such Subsequent Shelf
Registration was filed and (y) the Effectiveness Date) 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 Registration was previously
continuously effective. As used herein the term "Shelf Registration"
means the Initial Shelf Registration and any Subsequent Shelf
Registrations
(c) Supplements and Amendments. The Company 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, or
if reasonably requested in writing by the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Shelf Registration or by any underwriter of such Registrable Notes.
(d) Provision of Information. No Holder of Registrable Notes shall be
entitled to include any of its Registrable Notes in any Shelf
Registration pursuant to this Agreement unless such Holder furnishes
to the Company and the Trustee in writing, within 20 days after
receipt of a written request therefor, such information as the
Company and the Trustee after conferring with counsel with regard to
information relating to Holders that would be required by the SEC to
be included in such Shelf Registration or Prospectus included
therein, may reasonably request for inclusion in any Shelf
Registration or Prospectus included therein, and no such Holder
shall be entitled to Additional Interest (and Additional Interest
shall not accrue) pursuant to Section 4 hereof unless and until such
Holder shall have provided such information.
(e) Notwithstanding anything to the contrary in this Agreement, upon
notice to the Holders of Registrable Notes, the Company may suspend
use of the Prospectus included in any Shelf Registration Statement
in the event that and for a period of time (a "Blackout Period") not
to exceed an aggregate of 60 days in any 12-month period, the
Company's Board of Directors determines, in good faith, that (i) the
disclosure of an event, occurrence or other item at such time would
reasonably be expected to have a material adverse effect on the
Company's business, operations or prospects, or (ii) permitting such
sales would interfere with any material business transaction which
has not been publicly disclosed, and the Company's
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Board of Directors also determines, in good faith, that any
disclosure thereof would jeopardize the success of the transaction
or that disclosure of the transaction is prohibited pursuant to the
terms thereof.
4. ADDITIONAL INTEREST
(a) The Company acknowledges and agrees that the Holders of Registrable
Notes will suffer damages if the Company fails to fulfill its
material 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 Company agrees to pay additional cash
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 neither the Exchange Registration Statement nor the Initial
Shelf Registration has been filed with the SEC on or prior to
the Filing Date, Additional Interest shall accrue on the Notes
over and above any stated interest at a rate of 0.25% per
annum of the principal amount of such Notes 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 the Effectiveness Date or (B) notwithstanding that the
Company has consummated or will consummate an Exchange Offer,
the Company is required to file a Subsequent Shelf
Registration and such Subsequent Shelf Registration is not
declared effective on or prior to the later of (x) the 90th
day following the date such Subsequent Shelf Registration was
filed and (y) the Effectiveness Date, Additional Interest
shall accrue on the Notes over and above any stated interest
at a rate of 0.25% per annum of the principal amount of such
Notes for the first 90 days immediately following the
Effectiveness Date, such Additional Interest rate increasing
by an additional 0.25% per annum at the beginning of each
subsequent 90-day period;
(iii) if (A) the Company has not exchanged Exchange Notes for all
Notes validly tendered in accordance with the terms of the
Exchange Offer on or prior to the 45th day after the
Effectiveness Date, (B) the Exchange Registration Statement
ceases to be effective at any time prior to the time that the
Exchange Offer is consummated, or (C) 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 during a
Blackout Period or after such time as all Notes have been
disposed of thereunder) and is not declared effective again
within 30 days, or (D) pending the announcement of a material
corporate transaction, the Company issues a written notice
pursuant to Section 6(e)(v) or (vi) that a Shelf Registration
Statement or Exchange Registration Statement is unusable and
the aggregate number of days in any 365-day period for which
all such notices issued or required to be issued, have been,
or were required to be, in effect exceeds 60 days in the
aggregate, then Additional Interest shall accrue on the Notes,
over and above any stated interest, at a rate of 0.25% per
annum of the
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principal amount of such Notes commencing on (w) the 46th day
after the Effectiveness Date, in the case of (A) above, or (x)
the date the Shelf Registration Statement ceases to be
effective without being declared effective again within 30
days, in the case of clause (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 Additional Interest will not accrue under
more than one of the foregoing clauses (i), (ii) or (iii) at any one
time; provided further, however, that the maximum Additional
Interest rate on the Notes may not exceed at any one time in the
aggregate 1.00% per annum; and provided further, that (1) upon the
filing of the Exchange Registration Statement or Initial Shelf
Registration (in the case of (i) above), (2) upon the effectiveness
of the Exchange Registration Statement, Initial Shelf Registration
or Subsequent Shelf Registration, as the case may be (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 the Exchange Registration Statement that had ceased
to remain effective (in the case of clause (iii)(B) above), or upon
the effectiveness of a Shelf Registration which had ceased to remain
effective (in the case of (iii)(C) above), Additional Interest on
the Notes as a result of such clause (or the relevant subclause
thereof), or upon the effectiveness of such Registration Statement
or Exchange Registration Statement (in the case of clause (iii)(D)
above), as the case may be, shall cease to accrue.
(b) The Company shall notify the Trustee within 3 Business Days 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 clause (a)(i),
(a)(ii) or (a)(iii) of this Section 4 will be payable in cash, on
the dates and in the manner provided in the Indenture and whether or
not any cash interest would then be payable on such date, commencing
with the first such semi-annual 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, in the case of a partial month, the actual number
of days elapsed), and the denominator of which is 360.
(c) The parties hereto agree that the Additional Interest provided for
in this Section 4 constitutes the sole damages that will be suffered
by, and an adequate remedy for, Holders of Registrable Notes by
reason of the occurrence of any of the events described in Section
4(a) above.
5. HOLD-BACK AGREEMENTS
The Company agrees that it will not effect any public or private sale or
distribution (including a sale pursuant to Regulation D under the Securities
Act) of any securities the same as or similar to those covered by a Registration
Statement filed pursuant to Section 2 or 3 hereof
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(other than Additional Notes (as defined in the Indenture) issued under the
Indenture), or any securities convertible into or exchangeable or exercisable
for such securities, during the 10 days prior to, and during the 90-day period
beginning on, the effective date of any Registration Statement filed pursuant to
Sections 2 and 3 hereof unless the Holders of a majority in the aggregate
principal amount of the Registrable Notes to be included in such Registration
Statement consent, if the managing underwriter thereof so requests in writing.
6. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Company shall effect such registrations to permit
the sale of such 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 Company hereunder:
(a) Prepare and file with the SEC as soon as practicable after the date
hereof but in any event on or prior to the Filing Date, the Exchange
Registration Statement or if the Exchange Registration Statement is
not filed because of the circumstances contemplated by Section
2(j), a Shelf Registration as prescribed by Section 3, and use its
best 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 relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall, if requested in writing by
such person, furnish to and afford the Holders of the Registrable
Notes to be registered pursuant to such Shelf Registration
Statement, each Participating Broker-Dealer, the managing
underwriters, if any, and each of their respective counsel, 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. The Company
shall not file any such Registration Statement or Prospectus or any
amendments or supplements thereto in respect of which the Holders
must provide information for the inclusion therein without the
Holders being afforded an opportunity to review such documentation
if the holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement, or any
such Participating Broker-Dealer, as the case may be, the managing
underwriters, if any, or any of their respective counsel shall
reasonably object in writing on a timely basis. A Holder shall be
deemed to have reasonably objected to such filing if such
Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of
a material fact or omits to state any material fact necessary to
make the statements therein not misleading or fails to comply with
the applicable requirements of the Securities Act.
(b) The Company shall provide an indenture trustee for the Registrable
Notes, the Exchange Notes or the Private Exchange Notes, as the case
may be, and use its reasonable best efforts to cause the Indenture
(or other indenture relating to the Registrable Notes) to be
qualified under the TIA not later than the effective date of the
first Registration Statement; and in connection therewith, 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 reasonable best efforts to cause such trustee
to execute, all documents as may be required to effect
12
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.
(c) The Company shall prepare and file with the SEC such pre-effective
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 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 (or any similar
provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange
Act applicable to them 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; provided that none of
the foregoing shall be required during a Blackout Period. The
Company shall not, during the Applicable Period, voluntarily take
any action that would result in selling Holders of the Registrable
Notes covered by a Registration Statement or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell
such Registrable Notes or such Exchange Notes during that period,
unless such action is required by applicable law, rule or regulation
or permitted by this Agreement, including during a Blackout Period.
(d) The Company shall furnish to such selling Holders and Participating
Broker-Dealers who so request in writing (i) upon the Company's
receipt, a copy of the order of the SEC declaring such Registration
Statement and any post effective amendment thereto effective, (ii)
such reasonable number of copies of such Registration Statement and
of each amendment and supplement thereto (in each case including any
documents incorporated therein by reference and all exhibits), to
the extent not available on XXXXX) and (iii) such reasonable number
of copies of the Prospectus included in such Registration Statement
(including each preliminary Prospectus) and each amendment and
supplement thereto, and such reasonable number of copies of the
final Prospectus as filed by the Company pursuant to Rule 424(b)
under the Securities Act, in conformity with the requirements of the
Securities Act and each amendment and supplement thereto, and (iv)
such other documents (including any amendments required to be filed
pursuant to clause (c) of this Section), as any such Person may
reasonably request in writing. The Company hereby consents to the
use of the Prospectus (as amended or supplemented as of the date of
such use) 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
(e) The Company shall, 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
notifies the Company in writing that it seeks to sell Exchange Notes
during the Applicable Period relating thereto, the Company shall
notify in writing the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, the managing
underwriters, if any, and each of their respective counsel promptly
(but in any event within 2 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
(including in such notice a written statement that any Holder may,
upon request, obtain, without charge, one conformed copy of such
Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits to the extent not
available on XXXXX), (ii) of the issuance by the SEC of any stop
order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any Prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time
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 Company contained in any
agreement (including any underwriting agreement) contemplated by
Section 6(n) hereof cease to be true and correct in all material
respects, (iv) of the receipt by the Company 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 threatening of any proceeding for such purpose,
(v) of the happening of any event, the existence of any condition of
which the Company has knowledge, or of 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 and 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, (vi) of
any determination by the Company that a post-effective amendment to
a Registration Statement would be appropriate and (vii) of any
request by the SEC for amendments to the Registration Statement or
supplements to the Prospectus or for additional information relating
thereto.
(f) The Company shall use its reasonable 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 Notes or the Exchange
14
Notes to be sold by any Participating Broker-Dealer, for sale in any
jurisdiction, and, if any such order is issued, to use its
reasonable best efforts to obtain the withdrawal of any such order
at the earliest possible date.
(g) The Company shall, if (A) a Shelf Registration is filed pursuant to
Section 3, (B) 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 or (C)
reasonably requested in writing 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 incorporate 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 any of
their respective counsel reasonably request in writing to be
included or made 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 supplements or
post-effective amendment.
(h) The Company shall, 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, use its
reasonable best efforts to register or qualify, and to reasonably
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 any 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 other than through an Underwritten
Offering, the Company agrees to cause its counsel to perform Blue
Sky investigations and file any registrations and qualifications
required to be filed pursuant to this Section 6(h), keep each such
registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective (other than during Blackout Periods)and do any and all
other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the Registrable Notes covered by the
applicable Registration Statement; provided that the Company shall
not 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 any such jurisdiction where it is not then so
subject.
15
(i) The Company shall, if (A) a Shelf Registration is filed pursuant to
Section 3 or (B) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is requested to be delivered
under the Securities Act by any Participating Broker-Dealer who
seeks to sell Exchange Notes during the Applicable Period,
reasonably 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 and registered in such names as the
managing underwriter or underwriters, if any, or Holders may
reasonably request.
(j) The Company shall use its reasonable best efforts to cause the
Registrable Notes covered by any 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 underwriter, if any, to consummate the disposition of
such Registrable Notes, except as to the extent required as a
consequence of the nature of such selling Holder's business, in
which case the Company shall cooperate, at such Holder's sole cost
and expense, with the filing of such Registration Statement and the
granting of such approvals; provided that in no event shall the
Company 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
jurisdiction where it is not then so subject or (C) subject itself
to taxation in any such jurisdiction where it is not then so
subject.
(k) The Company shall, 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 6(e)(v) or
6(e)(vi) hereof, as promptly as reasonably practicable, prepare and
file with the SEC, at the expense of the Company, 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 Notes being sold thereunder or to the purchasers
of the Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, 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, and, if SEC review is required, use its reasonable
best efforts to cause such post-effective amendment to be declared
effective as soon as practicable.
(l) The Company shall use its reasonable best efforts to cause the
Registrable Notes covered by a Registration Statement to be rated
with such appropriate rating
16
agencies (unless such Registrable Notes are already rated), if so
requested in writing by the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such
Registration Statement or the managing underwriter or underwriters,
if any.
(m) The Company shall, prior to the initial issuance of the Exchange
Notes, (i) provide the Trustee with one or more certificates for the
Registrable Notes in a form eligible for deposit with The Depository
Trust Company and (ii) provide a CUSIP number for the Exchange
Notes.
(n) The Company shall, if a Shelf Registration is filed pursuant to
Section 3, enter into such agreements (including an underwriting
agreement in form, scope and substance as is customary in
underwritten offerings of debt securities similar to the Notes, if
applicable) as may be appropriate in the circumstances and take all
such other reasonable actions in connection therewith (including
those reasonably requested in writing by the managing underwriters,
if any, or the Holders of a majority in aggregate principal amount
of the Registrable Notes being sold) in order to expedite or
facilitate the registration or the disposition of such Registrable
Notes, and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration is an
Underwritten Registration, (i) make such representations and
warranties to the Holders and the underwriters, if any, with respect
to the business of the Company and its subsidiaries as then
conducted, and the Registration Statement, Prospectus and documents,
if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten
offerings of debt securities similar to the Notes, as may be
appropriate in the circumstances, and confirm the same if and when
reasonably required; (ii) obtain an opinion of counsel to the
Company and updates thereof (which opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing
underwriters, if any, and the Holders of a majority in aggregate
principal amount of the Registrable Notes being sold), addressed to
each selling Holder and each of the underwriters, if any, covering
the matters customarily covered in opinions of counsel to the
Company requested in underwritten offerings of debt securities
similar to the Notes, as is appropriate in the circumstances and
(iii) obtain "cold comfort" letters and updates thereof (which
letters and updates (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters) from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
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, as is appropriate in the
circumstances, and such other matters as reasonably requested in
writing by the underwriters; and (iv) deliver such documents and
certificates as may be reasonably requested in writing by the
Holders of a majority in aggregate
17
principal amount of the Registrable Notes being sold and the
managing underwriters, if any, to evidence the continued validity of
the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting
agreement or other similar agreement entered into by the Company.
(o) The Company shall, 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, supply or
make available for inspection by any selling Holder of such
Registrable Notes being sold, 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"), all pertinent
financial and other relevant corporate records of the Company and
its subsidiaries (collectively, the "Records") as shall be
reasonably requested in writing by such Inspector in connection with
such Registration Statement and necessary to enable any such
Inspector to exercise any applicable due diligence responsibilities,
subject to the policies and practices of the Company and its
subsidiaries with respect to the confidentiality of proprietary or
priviledged information. Each Inspector will be required to execute
and deliver to the Company, prior to and as a pre-condition to such
Inspector's receipt of or access to any Records, a confidentiality
agreement, containing customary terms and provisions and in form and
substance reasonably satisfactory to the Company and such Inspector,
prohibiting the use or disclosure of Records by such Inspector
except as provided by therein.
(p) The Company shall comply with all applicable rules and regulations
of the SEC and make generally available to the security holders of
the Company with regard to any applicable Registration Statement
earning statements 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 60 days after
the end of any 12-month period (or 105 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.
(q) The Company shall, upon consummation of an Exchange Offer or Private
Exchange, obtain an opinion of counsel to the Company (in form,
scope and substance reasonably satisfactory to the Trustee),
addressed to the Trustee for the benefit of all Holders
participating in the Exchange Offer or Private Exchange, as the case
may be, to the effect that (i) the Company has duly authorized,
executed and delivered the Exchange Notes or the Private Exchange
Notes, as the case may be, and the Indenture, (ii) the Exchange
Notes or the Private Exchange Notes, as
18
the case may be, and the Indenture constitute legal, valid and
binding obligations of the Company, enforceable against the Company
in accordance with their respective terms, except as such
enforcement may be subject to customary United States and foreign
exceptions and (iii) all obligations of the Company under the
Exchange Notes or the Private Exchange Notes, as the case may be,
and the Indenture are secured by Liens (as defined in the Indenture)
on the assets securing the obligations of the Company under the
Notes, Indenture and Collateral Agreements to the extent and as
discussed in the Registration Statement.
(r) The Company shall, if the Exchange Offer or a Private Exchange is to
be consummated, upon delivery of the Registrable Notes by the
Holders to the Company (or to such other Person as directed by the
Company) in exchange for the Exchange Notes or the Private Exchange
Notes, as the case may be, mark, or caused to be marked, on such
Registrable Notes that the Exchange Notes or the Private Exchange
Notes, as the case may be, are being issued as substitute evidence
of the indebtedness originally evidenced by the Registrable Notes;
provided that in no event shall such Registrable Notes be marked as
paid or otherwise satisfied.
(s) The Company shall reasonably 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.
(t) The Company shall use its reasonable best efforts to cause all
Registrable Notes covered by a Registration Statement to be listed
on each securities exchange, if any, on which similar debt
securities issued by the Company are then listed.
(u) The Company shall use its reasonable best efforts to take all other
steps reasonably necessary to effect the registration of the
Registrable Notes covered by a Registration Statement contemplated
hereby. Each Holder will cooperate with the Company, as reasonably
requested by the Company, in connection with the preparation and
filing of any Registration Statement hereunder, unless such Xxxxxx
has notified the Company in writing of such Xxxxxx's irrevocable
election to exclude all of such Xxxxxx's Registrable Notes from such
Registration Statement.
(v) The Company may require each seller of Registrable Notes 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 Notes as the Company may, from time to time, reasonably
request in writing. The Company may exclude from such registration
the Registrable Notes of any seller who fails to furnish such
information within a reasonable time (which time in no event shall
exceed 30 days) after receiving such request. No seller of
Registrable Notes or Participating Broker-Dealer shall be entitled
to any Additional Interest pursuant to Section 4 hereof unless, and
until (and Additional Interest shall not accrue until) the
19
Company's receipt of the requested information, such seller or
Participating Broker-Dealer shall have provided such information.
Each seller of Registrable Notes or Participating Broker-Dealer as
to which any registration is being effected agrees to furnish
promptly to the Company all information required to be disclosed in
order to make the information previously furnished by such seller
not materially misleading. Promptly following any sale or other
transfer of any securities covered by the Registration Statement,
the Holder selling or transferring such securities shall promptly
notify the Company in writing thereof, which notice shall specify
the amount of securities involved and the market, if any, on which
such sale or transfer occurred.
(w) Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by 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 written notice from the
Company (i) of the happening of any event of the kind described in
Section 6(e)(ii), 6(e)(iii), 6(e)(iv), 6(e)(v), or 6(e)(vi) or (ii)
of the commencement of a Blackout Period, such Holder will as soon
as reasonably practicable discontinue disposition of such
Registrable Notes covered by a Registration Statement and such
Participating Broker-Dealer will as soon as reasonably practicable
discontinue disposition of such Exchange Notes pursuant to any
Prospectus and, in each case, as soon as reasonably practicable
discontinue 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 6(k), 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 and, if so
directed by the Company, such Holder or Participating Broker-Dealer,
as the case may be, will deliver to the Company all copies, other
than permanent file copies, then in such Holder's or Participating
Broker-Dealer's possession, of the Prospectus covering such
Registrable Notes current at the time of the receipt of such notice.
In the event the Company shall give any such notice, 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 Participating Broker-Dealer shall have
received (x) the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) or (y) the Advice.
7. REGISTRATION EXPENSES
(a) All fees and expenses incurred by the Company in connection with its
performance of or compliance with this Agreement shall be borne by
the Company, 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 any Underwritten Offering and (B)
fees and expenses of compliance with state securities or Blue Sky
laws as provided in Section 6(h) hereof (including, without
limitation, reasonable fees and disbursements of 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 are located, in the case of
the Exchange Notes, or (y) as provided in Section 6(h), in the case
of Registrable Notes or Exchange
20
Notes to be sold by a Participating Broker-Dealer during the
Applicable Period), (ii) printing expenses, including, without
limitation, expenses of printing Prospectuses if the printing of
Prospectuses is requested in accordance with this Agreement 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 by any Participating
Broker-Dealer during the Applicable Period, as the case may be,
(iii) messenger, telephone and delivery expenses incurred in
connection with the performance of their obligations hereunder (iv)
fees and disbursements of counsel for the Company and, subject to
7(b), the Holders, (v) fees and disbursements of all independent
certified public accountants referred to in Section 6 (including,
without limitation, the expenses of any special audit and "cold
comfort" letters required by or incident to such performance), (vi)
rating agency fees and the fees and expenses incurred in connection
with the listing of the Securities to be registered on any
securities exchange, (vii) Securities Act liability insurance, if
the Company desires such insurance, (viii) fees and expenses of all
other Persons retained by the Company, (ix) fees and expenses of any
"qualified independent underwriter" or other independent appraiser
participating in an offering pursuant to Section 3 of Schedule E to
the By-laws of the NASD, but only where the need for such a
"qualified independent underwriter" arises due to a relationship
with the Company, (x) internal expenses of the Company (including,
without limitation, all salaries and expenses of officers and
employees of the Company performing legal or accounting duties),
(xi) the expense of any annual audit, (xii) the fees and expenses of
the Trustee and the Exchange Agent and (xiii) 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) The Company shall reimburse the Holders for the reasonable fees and
disbursements of not more than one counsel chosen by the Holders of
a majority in aggregate principal amount of the Registrable Notes to
be included in any Registration Statement. The Company shall pay all
documentary, stamp, transfer or other transactional taxes
attributable to the issuance or delivery of the Exchange Notes or
Private Exchange Notes in exchange for the Notes; provided that the
Company shall not be required to pay taxes payable in respect of any
transfer involved in the issuance or delivery of any Exchange Note
or Private Exchange Note in a name other than that of the Holder of
the Note in respect of which such Exchange Note or Private Exchange
Note is being issued.
8. INDEMNIFICATION
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Holder of Registrable Notes, Exchange Notes or
Private Exchange Notes and each Participating Broker-Dealer selling
Exchange Notes during the Applicable Period, each Person, if any,
who controls each such Holder (within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act) and the
officers, directors and partners of each such Holder, Participating
Broker-Dealer and controlling person, to the fullest extent lawful,
from and against any and all losses, claims, damages, liabilities,
costs (including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees as provided in this
21
Section 8) covered thereby and expenses (including, without
limitation, reasonable costs and expenses incurred in connection
with investigating, preparing, pursuing or defending against any of
the foregoing) (collectively, "Losses"), as incurred, directly or
indirectly caused by, related to, based upon, arising out of or in
connection with any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, Prospectus or form of
prospectus, or in any amendment or supplement thereto, or in any
preliminary prospectus, or 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
are based upon information relating to such Holder or Participating
Broker-Dealer and furnished in writing to the Company (or reviewed
and approved in writing) by or on behalf of such Holder or
Participating Broker-Dealer or their counsel expressly for use
therein; provided, however, that the Company will not be liable to
any Indemnified Party (as defined below) under this Section 8 if
Losses resulted from an untrue statement or omission or alleged
untrue statement or omission that was contained or made in any
preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto if (i) the Prospectus does not
contain any other untrue statement or omission or alleged untrue
statement or omission of a material fact that was the subject matter
of the related proceeding, (ii) any such Losses resulted from an
action, claim or suit by any Person who purchased Registrable Notes
or Exchange Notes which are the subject thereof from such
Indemnified Party and (iii) it is established in the related
proceeding that such Indemnified Party failed to deliver or provide
a copy of the Prospectus (as amended or supplemented) to such Person
with or prior to the confirmation of the sale of such Registrable
Notes or Exchange Notes sold to such Person if required by
applicable law, unless such failure to deliver or provide a copy of
the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 6 of this Agreement. The
Company also agrees to indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals
participating in the distribution, their officers, directors, agents
and employees and each Person who controls such Persons (within the
meaning of Section 5 of the Securities Act or Section 20(a) of the
Exchange Act) to the same extent as provided above with respect to
the indemnification of the Holders or the Participating
Broker-Dealer.
(b) Indemnification by Holders and Participating Broker-Dealers. Each
Holder and Participating Broker-Dealer shall indemnify and hold
harmless the Company, their respective directors, officers and
stockholders and each Person, if any, who controls the Company
(within the meaning of Section 15 of the Securities Act and Section
20(a) of the Exchange Act), and the directors, officers and
stockholders of such controlling persons, to the fullest extent
lawful, from and against any and all Losses arising out of or based
upon any untrue or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or any omission or alleged omission to state
therein 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, to the extent, but only
to the extent, that such losses are finally judicially determined by
a court of competent jurisdiction in a final, unappealable order to
have resulted from an untrue statement or alleged untrue statement
of a material fact or omission or alleged omission of a material
fact contained in or omitted from any
22
information so furnished in writing by or on behalf of such Holder
or Participating Broker-Dealer to the Company expressly for use
therein. Notwithstanding the foregoing, in no event shall the
liability of any selling Holder be greater in amount than such
Holder's Maximum Contribution Amount (as defined below).
(c) Conduct of Indemnification Proceedings. If any proceeding shall be
brought or asserted against any Person entitled to indemnity
hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party or parties from which such indemnity is
sought (the "Indemnifying Party" or "Indemnifying Parties", as
applicable) in writing; provided, that the failure to so notify the
Indemnifying Parties shall not relieve the Indemnifying Parties from
any obligation or liability except to the extent (but only to the
extent) that the Indemnifying Parties have been prejudiced
materially by such failure.
The Indemnifying Party shall have the right, exercisable by giving written
notice to an Indemnified Party, within 20 Business Days after receipt of written
notice from such Indemnified Party of such proceeding, to assume, at its
expense, the defense of any such proceeding, provided, that an Indemnified Party
shall have the right to employ separate counsel in any such proceeding and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party or parties unless: (1) the
Indemnifying Party has agreed to pay such fees and expenses; or (2) the
Indemnifying Party shall have failed promptly to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (3) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party or any of its affiliates or controlling persons, and such
Indemnified Party shall have been advised by counsel that there may be one or
more defenses available to such Indemnified Party that are in addition to, or in
conflict with, those defenses available to the Indemnifying Party or such
affiliate or controlling person (in which case, if such Indemnified Party
notifies the Indemnifying Parties in writing that it elects to employ separate
counsel at the expense of the Indemnifying Parties, the Indemnifying Parties
shall not have the right to assume the defense and the reasonable fees and
expenses of such counsel shall be at the expense of the Indemnifying Party; it
being understood, however, that, the Indemnifying Party shall not, in connection
with any one such proceeding or separate but substantially similar or related
proceedings in the same jurisdiction, arising out of the same general
allegations or circumstances, be liable for the fees and expenses of more than
one separate firm of attorneys (together with appropriate local counsel) at any
time for such Indemnified Party).
No Indemnifying Party shall be liable for any settlement of any such
proceeding covered by subsection (a) or (b) above effected without its written
consent, which shall not be unreasonably withheld, but if settled with its
written consent, or if there be a final judgment for the plaintiff in any such
proceeding covered by subsection (a) or (b) above, each Indemnifying Party
jointly and severally agrees, subject to the exceptions and limitations set
forth above, to indemnify and hold harmless each Indemnified Party from and
against any and all Losses by reason of such settlement or judgment. The
Indemnifying Party shall not consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving
by the claimant or plaintiff to each Indemnified Party of a release, in form and
23
substance reasonably satisfactory to the Indemnified Party, from all liability
in respect of such proceeding for which such Indemnified Party would be entitled
to indemnification hereunder (whether or not any Indemnified Party is a party
thereto).
(d) Contribution. If the indemnification provided for in this Section 8
is unavailable to an Indemnified Party or is insufficient to hold
such Indemnified Party harmless for any Losses in respect of which
this Section 8 would otherwise apply by its terms, then each
applicable Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall have a joint and several obligation to
contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party, on the one
hand, and such Indemnified Party, on the other hand, in connection
with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The
relative fault of such Indemnifying Party, on the one hand, and
Indemnified Party, on the other hand, shall be determined by
reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by such
Indemnifying Party or Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct
or prevent any such statement or omission. The amount paid or
payable by an Indemnified Party as a result of any Losses shall be
deemed to include any legal or other fees or expenses incurred by
such party in connection with any proceeding, to the extent such
party would have been indemnified for such fees or expenses if the
indemnification provided for in Section 8(a) or 8(b) was available
to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), a selling Holder shall not
be required to contribute, in the aggregate, any amount in excess of such
Holder's Maximum Contribution Amount. A selling Holder's "Maximum Contribution
Amount" shall equal the excess of (i) the aggregate proceeds received by such
Holder pursuant to the sale of such Registrable Notes or Exchange Notes over
(ii) the aggregate amount of damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and with respect to which such Holder was entitled to
indemnification hereunder. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of the
Registrable Securities held by each Holder hereunder and not joint.
The indemnity and contribution agreements contained in this Section 8 are
in addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
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9. RULES 144 AND 144A
The Company covenants that it shall (a) file the reports required to be
filed by it (if so required) under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the written request of any Holder of Registrable Notes,
make publicly available other information necessary to permit sales pursuant to
Rule 144 and 144A and (b) take such further action as any Holder may reasonably
request in writing, all to the extent required from time to time to enable such
Holder to sell Registrable Notes without registration under the Securities Act
pursuant to the exemptions provided by Rule 144 and Rule 144A. Upon the request
of any Holder, the Company shall deliver to such Xxxxxx a written statement as
to whether it has complied with such information and requirements.
10. UNDERWRITTEN REGISTRATIONS OF REGISTRABLE NOTES
If any of the Registrable Notes covered by any Shelf Registration is 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; provided, however, that such investment banker or
investment bankers and manager or managers must be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any Underwritten
Registration hereunder unless such Xxxxxx (a) agrees to sell such Xxxxxx'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.
11. MISCELLANEOUS
(a) Remedies. Subject to Section 4(c), the Company agrees that monetary
damages may not be adequate compensation for any loss incurred by
reason of a breach by the Company of any of the provisions of this
Agreement and that the Holders may be entitled to specific
performance in respect of such breach.
(b) No Inconsistent Agreements. The Company has not entered, as of the
date hereof, and shall not 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. .
(c) Adjustments Affecting Registrable Notes. The Company shall not,
directly or indirectly, take any action with respect to the
Registrable Notes as a class that would adversely affect the ability
of the Holders to include such Registrable Notes in a registration
undertaken pursuant to this Agreement.
25
(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 the Holders of not less than
a majority in aggregate principal amount of the then outstanding
Registrable Notes in circumstances that would adversely affect any
Holders of Registrable Notes; provided, however, that Section 8 and
this Section 11(d) may not be amended, modified or supplemented
without the prior written consent of each Holder. 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 Notes
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 Notes Registration
Statement.
(e) 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:
(i) if to a Holder of Registrable Notes or to 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 of the Notes, with a copy in like
manner to the Initial Purchaser as follows:
Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Facsimile No.:
Attention: Xxxxx X. Xxxxxx, Esq.
with a copy to:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
(ii) if to the Initial Purchaser, at the address specified in
Section 11(e)(1);
(iii) if to the Company, as follows:
Viskase Companies, Inc.
000 Xxxxxxxxxxx Xxxxxx Xxxxxxx
Willowbrook, Illinois 60527
26
Facsimile No.: (000) 000-0000
Attention: Xxx Xxxxx, Chief Executive Officer
with a copy to:
Jenner & Block LLC
Xxx XXX Xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx, 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 United States mail; 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.
(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, including, without limitation and without the need
for an express assignment, subsequent Holders of 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 WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAW. EACH PARTY HERETO HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR
ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF
NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITS AND
IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURTS. EACH PARTY HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE
27
LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH PARTY HERETO IRREVOCABLY CONSENTS, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE
SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED
OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE ADDRESS PROVIDED FOR SUCH
PARTY UNDER SECTION 11(C) HEREOF, SUCH SERVICE TO BECOME EFFECTIVE
30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
ANY PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANOTHER
PARTY IN ANY OTHER JURISDICTION.
(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) Securities Held by the Company or Its Affiliates. Whenever the
consent or approval of Holders of a specified percentage of
Securities is required hereunder, Securities held by the Company or
its affiliates (as such terms are 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.
(l) Third Party Beneficiaries. Holders and Participating Broker-Dealers
are intended third party beneficiaries of this Agreement and this
Agreement may be enforced by such Persons.
(m) Entire Agreement. This Agreement, together with the Purchase
Agreement, the Indenture and the Collateral Agreements, 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,
understanding, correspondence, conversations and memoranda between
the Initial Purchaser on the one hand and the Company on the other,
or between or among any agents, representatives, parents,
subsidiaries, affiliates, predecessors in
28
interest or successors in interest with respect to the subject
matter hereof and thereof are merged herein and replaced hereby.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
VISKASE COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Vice Chairman
DEBT REGISTRATION RIGHTS AGREEMENT
30
