Exhibit 4.15
X.X. XXXXXXXXX INC.
$325,000,000 8-7/8% SENIOR NOTES DUE 2010
$600,000,000 10-7/8% SENIOR SUBORDINATED NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
December 3, 2002
Xxxxxxx Xxxxx Xxxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
Deutsche Bank Securities Inc.
As Representatives of the several Initial
Purchasers named in Schedule I hereto
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
X.X. Xxxxxxxxx Finance Corporation I, a corporation organized
under the laws of the State of Delaware ("Finance Corp."), proposes, among other
things, to issue and sell to the several initial purchasers named in Schedule I
hereto (the "Initial Purchasers"), for whom you are acting as representatives
(the "Representatives"), $325,000,000 aggregate principal amount of its 8-7/8%
Senior Notes due 2010 (the "Senior Notes") and $600,000,000 aggregate principal
amount of its 10-7/8% Senior Subordinated Notes due 2012, (the "Senior
Subordinated Notes," and together with the Senior Notes, the "Notes") upon the
terms set forth in a purchase agreement dated November 26, 2002 (the "Purchase
Agreement") relating to the initial placement of the Notes (the "Initial
Placement"). In connection with the consummation of the refinancing and
acquisition plan of X.X. Xxxxxxxxx Inc., a corporation organized under the laws
of the State of Delaware ("RHD"), as described in the Final Memorandum (as
defined herein), Finance Corp. will be merged with and into RHD, the obligations
under the Notes will become obligations of RHD under, among other instruments,
the Notes and the Indentures (as defined herein) and the Guarantors (as defined
herein) (other than the Guarantors listed on the signature pages hereto) shall
execute and deliver a Joinder Agreement (attached to the Escrow Agreements (as
defined in the Purchase Agreement) as Exhibit E), to be dated as of the Release
Date, pursuant to which such Guarantors will become a party to this Agreement
and the Purchase Agreement (the "RHD Assumption"). Upon the Release Date (as
defined in the Purchase Agreement) and the consummation of the RHD
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Assumption, RHD's obligations under the Senior Notes will be guaranteed on a
senior unsecured basis (the "Senior Guarantees") and the Senior Subordinated
Notes will be guaranteed on a senior subordinated unsecured basis (the "Senior
Subordinated Guarantees" and, together with the Senior Guarantees, the
"Guarantees"), in each case, by X.X. Xxxxxxxxx Corporation, RHD's parent, and
each of RHD's subsidiaries named in Schedule II hereto (collectively, the
"Guarantors"). The Notes and the Guarantees are collectively referred to herein
as the "Securities". To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Issuers
(as defined herein) hereby agree with you for your benefit and the benefit of
the holders from time to time of Securities and Exchange Securities (as defined
below) (including the Initial Purchasers) (each a "Holder" and, together, the
"Holders" for as long as such Person holds Securities), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following defined terms shall have the
following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of or Person "affiliated" with, any specified
Person shall mean any Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with,
such specified Person. For purposes of this definition, "control" of a Person
shall mean the possession, direct or indirect, of the power to direct or cause
the direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled by" and "under common control with" shall have
meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Conduct Rules" shall have the meaning set forth in Section
4(s) hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
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"Exchange Offer Registration Period" shall mean the 180-day
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Issuers on an appropriate form under the Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the
Issuers identical in all material respects to the Securities (except that the
liquidated damages provisions, the transfer restrictions and the restrictive
legends shall be modified or eliminated, as appropriate) and to be issued under
the Indentures.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange any
Securities that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from any Issuer or any
Affiliate of any Issuer) for Exchange Securities.
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Finance Corp." shall have the meaning set forth in the
preamble hereto.
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Guarantors" shall have the meaning set forth in the preamble
hereto.
"Holder(s)" shall have the meaning set forth in the preamble
hereto.
"Indentures" shall mean the Indentures relating to the
Securities, to be dated as of the original issuance of the Notes, between
Finance Corp. and The Bank of New York, as trustee, as amended or supplemented
from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Issuers" shall mean RHD and the Guarantors.
"Losses" shall have the meaning set forth in Section 6(d)
hereof.
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"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and Exchange Securities, as the case
may be, registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"Notes" shall have the meaning set forth in the preamble
hereto.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other legal
entity.
"Prospectus" shall mean 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 under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the Exchange Securities
covered by such Registration Statement, and all amendments and supplements
thereto and all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Issuers to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer a like aggregate principal amount of Exchange Securities in exchange for
the Securities.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the Exchange Securities pursuant to the provisions of this
Agreement, any amendments and supplements to such registration statement,
including post-effective amendments (in each case including the Prospectus
contained therein), all exhibits thereto and all material incorporated by
reference therein.
"Representatives" shall have the meaning set forth in the
preamble hereto.
"RHD Assumption" shall have the meaning set forth in the
preamble hereto.
"Securities" shall mean the Notes and the Guarantees.
"Security Documents" shall have the meaning set forth in the
Indentures.
"Senior Guarantees" shall have the meaning set forth in the
preamble hereto.
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"Senior Notes" shall have the meaning set forth in the
Indentures.
"Senior Subordinated Guarantees" shall have the meaning set
forth in the preamble hereto.
"Senior Subordinated Notes" shall have the meaning set forth
in the Indentures.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" shall have the meaning set forth
in Section 3(b)(ii) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Issuers pursuant to the provisions of Section 3
hereof which covers some or all of the Securities or Exchange Securities, as
applicable, on an appropriate form under Rule 415 under the Act, or any similar
rule that may be adopted by the Commission, amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities under the Indentures.
"underwriter" shall mean any Person deemed an "underwriter,"
under the Act, of Securities or Exchange Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Issuers shall prepare
and, not later than 120 days following the Release Date (or if such 120th day is
not a Business Day, the next succeeding Business Day), shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Issuers shall use their respective reasonable
best efforts to cause the Exchange Offer Registration Statement to become
effective under the Act within 180 days of the Release Date (or if such 180th
day is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Issuers shall promptly commence the Registered Exchange Offer, it
being the objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for Exchange Securities (assuming that such
Holder is not an Affiliate of any Issuer, acquires the Exchange Securities in
the ordinary course of such Holder's business, is not engaged in and does not
intend to engage in and has no arrangements or understandings with any Person to
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participate in the distribution of the Exchange Securities, is not a
broker-dealer tendering Securities directly acquired from any Issuer for its own
account and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Act and under state securities or blue sky laws.
(c) In connection with the Registered Exchange Offer, the
Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 days after the date notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) if the Issuers receive notice from an Exchanging Dealer
that such Exchanging Dealer holds Securities acquired for the account
of such Exchanging Dealer as a result of market making or other trading
activities, use their respective reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective under the
Act, supplemented and amended as required under the Act to ensure that
it is available for sales of Exchange Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day
on which the Registered Exchange Offer is open by sending to the entity
specified in the Prospectus, a facsimile or letter setting forth the
name of such Holder, the principal amount of the Securities delivered
for exchange and a statement that such Xxxxxx is withdrawing such
Xxxxxx's election to have such Securities exchanged;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Issuers are conducting the Registered Exchange Offer in
reliance on the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988) and Xxxxxx Xxxxxxx and Co., Inc.
(pub. avail. June 5, 1991); and (B) including a representation that the
Issuers have not entered into any arrangement or understanding with any
Person to distribute the Exchange Securities to be received in the
Registered Exchange Offer and that, to the best of the Issuers'
information and belief, each Holder
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participating in the Registered Exchange Offer is acquiring the
Exchange Securities in the ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Exchange Securities; and
(vii) comply in all respects with all applicable laws relating
to the Registered Exchange Offer.
(d) As soon as reasonably practicable after the close of the
Registered Exchange Offer, the Issuers shall:
(i) accept for exchange all Securities duly tendered and not
validly withdrawn pursuant to the Registered Exchange Offer in
accordance with the terms of the Exchange Offer Registration Statement
and letter of transmittal, which shall be an exhibit thereto;
(ii) deliver to the Trustee for cancellation in accordance
with Section 4(s) hereof all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
to each Holder of Securities a principal amount of Exchange Securities
equal to the principal amount of the Securities of such Holder so
accepted for exchange.
(e) Each Holder, by tendering Securities for exchange for
Exchange Securities, acknowledges and agrees that any Broker-Dealer and any such
Holder using the Registered Exchange Offer to participate in a distribution of
the Exchange Securities (x) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission in Xxxxxx
Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), as interpreted in the Commission's
letter to Xxxxxxxx & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery requirements
of the Act in connection with any secondary resale transaction and must be
covered by an effective registration statement containing the selling security
holder information required by Item 507 and 508 of Regulation S-K, as
applicable, under the Act if the resales are of Exchange Securities obtained by
such Holder in exchange for Securities acquired by such Holder directly from any
Issuer or one of its Affiliates. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent to the Issuers that, at
the time of the consummation of the Registered Exchange Offer:
(i) any Exchange Securities received by such Holder will be
acquired in the ordinary course of business;
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(ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Securities or
the Exchange Securities within the meaning of the Act; and
(iii) such Holder is not an Affiliate of any Issuer.
(f) If any Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of such Initial Purchaser, the Issuers shall issue and deliver to such
Initial Purchaser or the Person purchasing Exchange Securities registered under
a Shelf Registration Statement as contemplated by Section 3 hereof from such
Initial Purchaser, in exchange for such Securities, a like principal amount of
Exchange Securities. The Issuers shall use their respective reasonable best
efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for
such Exchange Securities as for Exchange Securities issued pursuant to the
Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Issuers
determine upon advice of their outside counsel that they are not permitted to
effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii)
for any other reason the Registered Exchange Offer is not consummated within 210
days after the Release Date; (iii) prior to the 20th day following consummation
of the Registered Exchange Offer (A) any Initial Purchaser so requests with
respect to Securities that are not eligible to be exchanged for Exchange
Securities in the Registered Exchange Offer and that are held by it following
consummation of the Registered Exchange Offer; (B) any Holder (other than an
Initial Purchaser) is not eligible to participate in the Registered Exchange
Offer; or (C) in the case of any Initial Purchaser that participates in the
Registered Exchange Offer or acquires Exchange Securities pursuant to Section
2(f) hereof, such Initial Purchaser does not receive freely tradeable Exchange
Securities in exchange for Securities constituting any portion of an unsold
allotment (it being understood that (x) the requirement that an Initial
Purchaser deliver a Prospectus containing the information required by Item 507
and 508 of Regulation S-K, as applicable, under the Act in connection with sales
of Exchange Securities acquired in exchange for such Securities shall result in
such Exchange Securities being not "freely tradeable"; and (y) the requirement
that an Exchanging Dealer deliver a Prospectus in connection with sales of
Exchange Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other trading
activities shall not result in such Exchange Securities being not "freely
tradeable"), the Issuers shall effect a Shelf Registration Statement in
accordance with Section 3(b) hereof.
(b) (i) The Issuers shall as promptly as reasonably
practicable (but in no event more than 120 days after so required or requested
pursuant to this Section 3), file with the Commission, and thereafter shall use
their respective reasonable best efforts to cause to be declared effective under
the Act (within 180 days after so required or requested pursuant to
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this Section 3), a Shelf Registration Statement relating to the offer and sale
of the Securities or the Exchange Securities, as applicable, by the Holders
thereof from time to time in accordance with the methods of distribution elected
by a majority of such Holders and set forth in such Shelf Registration
Statement; provided, however, that nothing in this Section 3(b) shall require
the filing of a Shelf Registration Statement prior to the deadline for filing
the Exchange Offer Registration Statement set forth in Section 2(a); provided,
further, that no Holder (other than an Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all of the provisions of
this Agreement applicable to such Holder; and provided, further, that with
respect to Exchange Securities received by an Initial Purchaser in exchange for
Securities constituting any portion of an unsold allotment, the Issuers may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Item 507 and 508 of Regulation S-K, as applicable,
in satisfaction of their obligations under this subsection with respect thereto,
and any such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable to, a
Shelf Registration Statement.
(ii) The Issuers shall use their respective reasonable best
efforts to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a period of two
years from the original issuance date of the Securities or such shorter period
that will terminate when all the Securities or Exchange Securities, as
applicable, covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding (in any such
case, such period being called the "Shelf Registration Period"). The Issuers
shall be deemed not to have used their respective reasonable best efforts to
keep the Shelf Registration Statement effective during the requisite period if
any of them voluntarily takes any action that would result in Holders of
Securities or Exchange Securities covered thereby not being able to offer and
sell such Securities or Exchange Securities during that period, unless (A) such
action is required by applicable law; or (B) such action is taken by such Issuer
in good faith and for valid business reasons (not including avoidance of its
obligations hereunder), including the acquisition or divestiture of assets, so
long as the Issuers thereafter comply with the requirements of Section 4(k)
hereof, if applicable.
4. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply:
(a) The Issuers shall:
(i) furnish to each of you, not less than five
Business Days prior to the filing thereof with the Commission,
a copy of the Exchange Offer
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Registration Statement or the Shelf Registration Statement, as
the case may be, and each amendment thereto and each amendment
or supplement, if any, to the Prospectus included therein (and
upon written request, all documents incorporated by reference
therein after the initial filing) and shall use their
reasonable best efforts to reflect in each such document, when
so filed with the Commission, such comments as you reasonably
propose within a reasonable time prior to such filing;
(ii) in the case of an Exchange Offer Registration
Statement, to the extent permitted by the Act, include the
information in substantially the form set forth in Annex A
hereto on the facing page of the Exchange Offer Registration
Statement, in substantially the form set forth in Annex B
hereto in the forepart of the Exchange Offer Registration
Statement in a section setting forth details of the Exchange
Offer, in substantially the form set forth in Annex C hereto
in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration
Statement, and in substantially the form set forth in Annex D
hereto in the letter of transmittal delivered pursuant to the
Registered Exchange Offer; and
(iii) in the case of a Shelf Registration Statement,
include the names of the Holders that propose to sell
Securities or Exchange Securities pursuant to the Shelf
Registration Statement as selling security holders and the
applicable information required by Item 507 of Regulation S-K
as provided by the Holders.
(b) The Issuers shall advise you, the Holders of Securities or
Exchange Securities covered by any Shelf Registration Statement and any
Exchanging Dealer under any Exchange Offer Registration Statement that
has provided in writing to any Issuer a telephone or facsimile number
and address for notices, and, if requested by you or any such Holder or
Exchanging Dealer, shall confirm such advice in writing (which notice
pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Issuers
shall have remedied the basis for such suspension):
(i) when a Registration Statement or any amendment
thereto has been filed with the Commission and when the
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for any
amendment or supplement to the Registration Statement or the
Prospectus or for additional information;
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(iii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that
purpose;
(iv) of the receipt by any Issuer of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or
the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any
change in the Registration Statement or the Prospectus so
that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required
to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading;
provided, that such notice need not identify the reasons for
such event that requires such change in the Registration
Statement.
(c) The Issuers shall use their respective reasonable best
efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement or the qualification of the
securities therein for sale in any jurisdiction at the earliest
possible time.
(d) The Issuers shall furnish to each Holder of Securities or
Exchange Securities covered by any Shelf Registration Statement,
without charge, at least one copy of such Shelf Registration Statement
and any post-effective amendment thereto, including, upon written
request, all material incorporated therein by reference and exhibits
thereto (including exhibits incorporated by reference therein).
(e) The Issuers shall, during the Shelf Registration Period,
deliver to each Holder of Securities or Exchange Securities covered by
any Shelf Registration Statement, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request. The Issuers consent to the use of
the Prospectus or any amendment or supplement thereto by each of the
selling Holders of securities in connection with the offering and sale
of the securities covered by the Prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(f) The Issuers shall furnish to each Exchanging Dealer which
so requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto,
including, upon written request, all material incorporated by reference
therein, and all exhibits thereto (including exhibits incorporated by
reference therein).
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(g) The Issuers shall promptly deliver to each Initial
Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period,
without charge, as many copies of the Prospectus included in such
Exchange Offer Registration Statement and any amendment or supplement
thereto as any such Person may reasonably request. The Issuers consent
to the use of the Prospectus or any amendment or supplement thereto by
any Initial Purchaser, any Exchanging Dealer and any such other Person
that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the Exchange
Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Exchange Offer Registration Statement.
(h) Prior to the Registered Exchange Offer or any other
offering of Securities or Exchange Securities pursuant to any
Registration Statement, the Issuers shall arrange, if necessary, for
the qualification of the Securities or the Exchange Securities for sale
under the laws of such jurisdictions as any Holder shall reasonably
request and will maintain such qualification in effect so long as
required; provided that in no event shall any Issuer be obligated to
qualify to do business in any jurisdiction where it is not then so
qualified or to take any action that would subject it to taxation or
service of process in suits, other than those arising out of the
Initial Placement, the Registered Exchange Offer or any offering
pursuant to a Shelf Registration Statement, in any such jurisdiction
where it is not then so subject.
(i) The Issuers shall cooperate with the Holders to facilitate
the timely preparation and delivery of certificates representing
Exchange Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(j) Upon the occurrence of any event contemplated by
subsections (b)(ii) through (v) above, the Issuers shall promptly
prepare a post-effective amendment to the applicable Registration
Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to
Initial Purchasers, the Prospectus will not include an untrue statement
of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, that the Issuers shall not be
required to amend or supplement a Shelf Registration Statement or
Prospectus, as the case may be, on no more than two occasions, for a
reasonable period of time, but not in excess of 90 days in any
consecutive 12-month period if the Issuers determine reasonably and in
good faith that such amendment or supplement would require the
disclosure of non-public material information that, in the reasonable
judgment of the Issuers, would be detrimental to any Issuer if so
disclosed or would
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otherwise materially adversely affect a financing, acquisition,
disposition, merger or other material transaction. In such
circumstances, the period of effectiveness of the Exchange Offer
Registration Statement provided for in Section 2 hereof and the Shelf
Registration Statement provided for in Section 3(b) hereof shall each
be extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 4(b) hereof to and
including the date when the Initial Purchasers, the Holders and any
known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section 4. As soon as
practicable following receipt of notice from the Issuers in accordance
with Section 4(b) hereof, each Holder and Exchange Dealer agrees to
suspend use of the Prospectus until such Holder and Exchange Dealer
receive copies of the amended or supplemented Prospectus or until it
receives written notice from the Issuers that the use of the applicable
Prospectus may be resumed.
(k) Not later than the effective date of any Registration
Statement, the Issuers shall provide a CUSIP number for the Securities
or the Exchange Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed
certificates for such Securities or Exchange Securities, in a form
eligible for deposit with The Depository Trust Company.
(l) RHD shall make generally available to its security holders
as soon as practicable after the effective date of the applicable
Registration Statement an earnings statement satisfying the provisions
of Section 11(a) of the Act.
(m) The Issuers shall cause the Indentures to be qualified
under the Trust Indenture Act in a timely manner.
(n) The Issuers may require each Holder of securities to be
sold pursuant to any Shelf Registration Statement to furnish to the
Issuers such information regarding the Holder and the distribution of
such securities as the Issuers may from time to time reasonably require
for inclusion in such Registration Statement. The Issuers may exclude
from such Shelf Registration Statement the Securities or Exchange
Securities of any Holder that unreasonably fails to furnish such
information within a reasonable time after receiving such request and
the Issuers shall be under no further obligations to such Holder to
include such Holder in a Shelf Registration Statement.
(o) In the case of any Shelf Registration Statement, the
Issuers shall enter into such and take all other appropriate actions
(including, if requested by Holders representing 10% of the principal
amount of Securities covered by such Shelf Registration Statement, an
underwriting agreement in customary form) in order to expedite or
facilitate the registration or the disposition of the Securities or
Exchange Securities, and in connection therewith, if an underwriting
agreement is entered into, cause the same to contain indemnification
provisions and procedures no less favorable
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than those set forth in Section 6 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing
Underwriters, if any, with respect to all parties to be indemnified
pursuant to Section 6.
(p) In the case of any Shelf Registration Statement, the
Issuers shall:
(i) subject to execution of a confidentiality
agreement in form and substance reasonably acceptable to the
Issuers and the Holders, make reasonably available for
inspection by the Holders of Securities or Exchange Securities
to be registered thereunder, any underwriter participating in
any disposition pursuant to such Shelf Registration Statement,
and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and
other records, pertinent corporate documents and properties of
each Issuer during normal business hours at the offices where
such information is typically kept;
(ii) cause the officers, directors and employees of
each Issuer to supply all relevant information reasonably
requested by the Holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf
Registration Statement as is customary for similar due
diligence examinations during normal business hours at the
offices where such information is typically kept; provided,
however, that any information that is subject to the
confidentiality agreement referred to in Section 4(p)(i) above
shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the
public generally or through a third party without an
accompanying obligation of confidentiality; provided, further,
that prior written notice shall be provided as soon as
practicable to the applicable Issuer of the potential
disclosure of any information in connection with a court
proceeding or required by law to permit such Issuer to obtain
a protective order or take such other action to prevent
disclosure of such information;
(iii) make such representations and warranties to the
Holders of Securities or Exchange Securities registered
thereunder and the underwriters, if any, in form, substance
and scope as are customarily made by issuers to underwriters
in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement as may be reasonably requested;
(iv) obtain opinions of counsel to the Issuers and
updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the
Managing Underwriters, if any) addressed to
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each selling Holder and the underwriters, if any, covering
such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be
reasonably requested by such Holders and underwriters;
(v) obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of RHD (and,
if necessary, any other independent certified public
accountants of any Issuer or any subsidiary of any Issuer or
of any business acquired by any Issuer for which financial
statements and financial data are, or are required to be,
included in the Shelf Registration Statement), addressed to
each selling Holder of securities registered thereunder and
the underwriters, if any, in customary form and covering
matters of the type customarily covered in "cold comfort"
letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance
with Section 4(k) and with any customary conditions contained
in the underwriting agreement or other customary agreement
entered into by the Issuers.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(p) shall be performed at each closing under any underwriting
or similar agreement as and to the extent required thereunder.
(q) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to RHD (or to such other Person
as directed by RHD) in exchange for the Exchange Securities, RHD shall
mark, or caused to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the Exchange Securities.
In no event shall the Securities be marked as paid or otherwise
satisfied.
(r) The Issuers will use their respective reasonable best
efforts (i) if the Securities have been rated prior to the initial sale
of such Securities pursuant to the Purchase Agreement, to confirm such
ratings will apply to the Securities or the Exchange Securities, as the
case may be, covered by a Exchange Offer Registration Statement; or
(ii) if the Securities were not previously rated, to cause the
Securities covered by a Registration Statement to be rated with at
least one nationally recognized statistical rating agency, if so
requested by Majority Holders with respect to the related Registration
Statement or by any Managing Underwriters.
(s) In the event that any Broker-Dealer shall underwrite any
Securities or Exchange Securities or participate as a member of an
underwriting syndicate or selling
-16-
group or "assist in the distribution" (within the meaning of the
Conduct Rules of the National Association of Securities Dealers, Inc.
(the "Conduct Rules")) thereof, whether as a Holder or as an
underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, the Issuers shall assist such
Broker-Dealer in complying with the requirements of such Conduct Rules,
including, without limitation, by:
(i) if such Conduct Rules shall so require, engaging
a "qualified independent underwriter" (as defined in such
Rules) to participate in the preparation of the Registration
Statement, to exercise usual standards of due diligence with
respect thereto and, if any portion of the offering
contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to
recommend the yield of such Securities or Exchange Securities;
(ii) indemnifying any such qualified independent
underwriter to the extent of the indemnification of
underwriters provided in Section 6 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Conduct
Rules.
(t) The Issuers shall use their respective reasonable best
efforts to take all other steps necessary to effect the registration of
the Securities or the Exchange Securities, as the case may be, covered
by a Registration Statement.
5. Registration Expenses. The Issuers shall bear all expenses
incurred in connection with the performance of their obligations under Sections
2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith.
6. Indemnification and Contribution. (a) The Issuers jointly
and severally agree to indemnify and hold harmless each Holder of Securities or
Exchange Securities, as the case may be, covered by any Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(g) hereof, each Exchanging Dealer), the directors,
officers, employees and agents of each such Holder and each Person who controls
any such Holder within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the
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Registration Statement as originally filed or in any amendment thereof, or in
any preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and jointly and
severally agree to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Issuers will not be liable in any case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of any such Holder
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Issuers may otherwise have; provided, further,
however, that with respect to any untrue statement or omission of material fact
made in any preliminary prospectus, the indemnity agreement contained in this
Section 6(a) shall not inure to the benefit of any Holder from whom the Person
asserting any such loss, claim, damage or liability purchased the securities
concerned, to the extent that any such loss, claim, damage or liability of such
Holder occurs under the circumstance where it shall have been determined by a
court of competent jurisdiction by final and nonappealable judgment that (w) the
Issuers had previously furnished copies of the Prospectus to the Holders, (x)
delivery of the Prospectus was required by the Act to be made to such Person,
(y) the untrue statement of omission of a material fact contained in such
preliminary prospectus was corrected in the Prospectus and (z) there was not
sent or given to such Person, at or prior to the written confirmation of the
sale of such securities to such person, a copy of the Prospectus.
The Issuers also jointly and severally agree to indemnify or
contribute as provided in Section 6(d) to Losses of each underwriter of
Securities or Exchange Securities, as the case may be, registered under a Shelf
Registration Statement, their directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
in this Section 6(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(o)
hereof.
(b) Each Holder of securities covered by a Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(g) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Issuers, each of their
respective directors, each of their respective officers who signs such
Registration Statement, and each Person who controls any Issuer within the
meaning of either the Act or the Exchange Act, to the same extent as the
foregoing indemnity from the Issuers to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Issuers by or on behalf of such Holder specifically for
-18-
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ one separate counsel (including local counsel),
and the indemnifying party shall bear the reasonable fees, costs and expenses of
such separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of the institution of such action; or (iv) the indemnifying
party shall authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. It is understood, however, that the
indemnifying party shall, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general circumstances, be liable for the fees and expenses of only one
firm of attorneys (in addition to local counsel) at any time for all such
indemnified parties. An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable under this Section 6 to any indemnified party regarding any
-19-
settlement or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent is consented to by such
indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any subsequent
Holder of any Security or New Security be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth on the cover page of the Final
Memorandum, nor shall any underwriter be responsible for any amount in excess of
the underwriting discount or commission applicable to the securities purchased
by such underwriter under the Registration Statement which resulted in such
Losses. If the allocation provided by the immediately preceding sentence is
unavailable for any reason, the indemnifying party and the indemnified party
shall contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of such indemnifying party, on the
one hand, and such indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Issuers shall be
deemed to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Memorandum and (y) the total amount of additional interest which the
Issuers were not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses. Benefits
received by the Initial Purchasers shall be deemed to be equal to the total
purchase discounts and commissions as set forth on the cover page of the Final
Memorandum and benefits received by any other Holders shall be deemed to be
equal to the value of receiving Securities or Exchange Securities, as
applicable, registered under the Act. Benefits received by any underwriter shall
be deemed to be equal to the total underwriting discounts and commissions, as
set forth on the cover page of the Prospectus forming a part of the Registration
Statement which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement or
omission relates to information provided by the indemnifying party, on the one
hand, or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to
-20-
correct or prevent such untrue statement or omission. The parties agree that it
would not be just and equitable if contribution were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 6, each Person who controls a Holder within the meaning of either
the Act or the Exchange Act and each director, officer, employee and agent of
such Holder shall have the same rights to contribution as such Holder, and each
Person who controls any Issuer within the meaning of either the Act or the
Exchange Act, each officer of any Issuer who shall have signed the Registration
Statement and each director of any Issuer shall have the same rights to
contribution as the Issuers, subject in each case to the applicable terms and
conditions of this paragraph (d).
(e) The provisions of this Section 6 will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Issuers or any of the officers, directors or controlling Persons referred
to in this Section 6 hereof, and will survive the sale by a Holder of securities
covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or
Exchange Securities, as the case may be, covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the Managing Underwriters
shall be selected by the Majority Holders after consultation with the Issuers.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Securities or Exchange Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
8. No Inconsistent Agreements. No Issuer has, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Issuers have obtained the written
consent of the Majority Holders; provided that, with respect to any matter that
directly or indirectly affects the rights of any Initial Purchaser hereunder,
the Issuers shall obtain the written consent of each the Initial
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Purchasers against which such amendment, qualification, supplement, waiver or
consent is to be effective. Notwithstanding the foregoing (except the foregoing
proviso), a waiver or consent to departure from the provisions hereof with
respect to a matter that relates exclusively to the rights of Holders whose
Securities or Exchange Securities, as the case may be, are being sold pursuant
to a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by the Majority Holders, determined on the
basis of Securities or Exchange Securities, as the case may be, being sold
rather than registered under such Registration Statement.
10. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such
holder to the Issuers in accordance with the provisions of this Section
10, which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the
Indentures, with a copy in like manner to Xxxxxxx Xxxxx Xxxxxx Inc.;
(b) if to you, initially at the respective addresses set forth
in the Purchase Agreement; and
(c) if to the Issuers, initially at their address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given at the time delivered personally, if personally delivered; two
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt is acknowledged, if telecopied; and
on the next business day, if timely delivered to a nationally recognized air
courier guaranteeing overnight delivery.
The Initial Purchasers or the Issuers by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
11. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
including, without the need for an express assignment or any consent by the
Issuers thereto, subsequent Holders of Securities and the Exchange Securities.
The Issuers hereby agree to extend the benefits of this Agreement to any Holder
of Securities or the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
-22-
12. Counterparts. This Agreement may be in signed
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement.
13. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16. Securities Held by the Issuers, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or Exchange Securities is required hereunder, Securities or Exchange
Securities, as applicable, held by any Issuers or its Affiliates (other than
subsequent Holders of Securities or Exchange Securities if such subsequent
Holders are deemed to be Affiliates solely by reason of their holdings of such
Securities or Exchange Securities) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
17. Submission to Jurisdiction. By the execution and delivery
of this Agreement, each Issuer submits to the non-exclusive jurisdiction of any
federal or state court in the State of New York in any suit or proceeding
arising out of or relating to this Agreement or brought under federal or state
securities laws.
18. Termination. This Agreement shall automatically terminate
if Finance Corp. completes a Special Mandatory Redemption (as defined in the
Indentures).
[Signature Page Follows]
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Issuers and the several Initial Purchasers.
Very truly yours,
X.X. XXXXXXXXX INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX ACQUISITIONS, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX APIL, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
X.X. XXXXXXXXX CD, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
S-1
GET DIGITAL XXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxx
--------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
S-2
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
XXXXXXX XXXXX XXXXXX INC.
BEAR, XXXXXXX & CO. INC.
DEUTSCHE BANK SECURITIES INC.
By: XXXXXXX XXXXX XXXXXX INC.
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
As Representatives of the several Initial Purchasers named in Schedule I hereto.
S-3
SCHEDULE I
Initial Purchasers:
Xxxxxxx Xxxxx Xxxxxx Inc.
Bear, Xxxxxxx & Co. Inc.
Deutsche Bank Securities Inc.
ABN AMRO Incorporated
BNP Paribas Securities Corp.
Fleet Securities, Inc.
ING Financial Markets LLC
SCHEDULE II
Guarantors:
X.X. Xxxxxxxxx Corporation
X.X. Xxxxxxxxx Acquisitions, Inc.
X.X. Xxxxxxxxx APIL, Inc.
X.X. Xxxxxxxxx CD, Inc.
Get Digital Xxxxx.xxx, Inc.
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a Broker-Dealer in
connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such Broker-Dealer as a result
of market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business 180 days after the Expiration Date, they will make this
Prospectus available to any Broker-Dealer for use in connection with any such
resale. See "Plan of Distribution."
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its
own account in exchange for Securities, where such Securities were acquired by
such Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
ANNEX C
Plan of Distribution
Each Broker-Dealer that receives Exchange Securities for its
own account pursuant to the Exchange Offer must acknowledge that it will deliver
a prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Issuers have agreed
that, starting on the Expiration Date and ending on the close of business 180
days after the Expiration Date, they will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until ___________, 200__, all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Issuers will not receive any proceeds from any sale of
Exchange Securities by Broker-Dealers. Exchange Securities received by
Broker-Dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such Broker-Dealer and/or the purchasers of
any such Exchange Securities. Any Broker-Dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the Act
and any profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Act.
For a period of 180 days after the Expiration Date, the
Issuers will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Issuers have agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holder of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Securities (including
any Broker-Dealers) against certain liabilities, including liabilities under the
Act.
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND
WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF
ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
-----------------------------------------
Address:
-----------------------------------------
-----------------------------------------
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the Exchange Securities in the ordinary course of its business, it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities and it has no arrangements or understandings with any Person to
participate in a distribution of the Exchange Securities. If the undersigned is
a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Act.
