1
Ex. 4.5
REGISTRATION RIGHTS AGREEMENT
Dated as of April 24, 0000
Xxxxx
XXX XXXX XXXXXXX XX XXXXXXX, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers
and
BT ALEX. XXXXX INCORPORATED
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
as Initial Purchasers
9_1/8% Senior Subordinated Notes due 2008
and
Floating Interest Rate Subordinated
Footnote continued from previous page.
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Term Securities due 2008
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated
as of April 24, 1998, among EYE CARE CENTERS OF AMERICA, INC., a Texas
corporation (the "Company"), as issuer, each of the Company's domestic
subsidiaries listed on the signature pages hereof, as guarantors (the
"Guarantors" and, together with the Company, the "Issuers"), and BT Alex. Xxxxx
Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as initial
purchasers (the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of April 17, 1998, among the Issuers and the Initial
Purchasers (the "Purchase Agreement"), which provides for the sale by the
Company to the Initial Purchasers of $100,000,000 aggregate principal amount of
the Company's 9_1/8% Senior Subordinated Notes due 2008 (the "Fixed Rate Notes")
and $50,000,000 aggregate principal amount of the Company's Floating Interest
Rate Subordinated Term Securities due 2008 (the "Floating Rate Notes" and,
together with the Fixed Rate Notes, the "Notes"), in each case guaranteed by the
Guarantors (the "Guarantees"). In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Issuers have agreed to provide the
registration rights set forth in this Agreement for the benefit of the Initial
Purchasers and any subsequent holder or holders of the Notes. The execution and
delivery of this Agreement is a condition to the Initial Purchasers' obligation
to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4 hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2(b) hereof.
Effectiveness Date: The 135th day after the Issue Date;
provided, however, that with respect to any Shelf Registration other than a
Shelf Registration if no Exchange Offer Registration Statement has been filed,
the Effectiveness Date shall be the 60th day after the Filing Date with respect
thereto.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2 hereof.
Exchange Offer: See Section_2 hereof.
Exchange Offer Registration Statement: See Section_2
hereof.
Filing Date: With respect to the Exchange Offer Registration
Statement, the 60th day after the Issue Date;
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provided, however, that with respect to any Shelf Registration Statement, (A)_if
no Exchange Offer Registration Statement has been filed by the Issuers pursuant
to this Agreement, the Filing Date shall be the 60th day after the Issue Date
and (B)_in each other case (which may be applicable notwithstanding the
consummation of the Exchange Offer), the Filing Date shall be the 30th day after
the delivery of a Shelf Notice (which shall be no earlier than the 60th day
after the Issue Date).
Fixed Rate Notes: See the introductory paragraphs hereto.
Fixed Rate Exchange Notes: See section 2(a) hereof.
Floating Rate Notes: See the introductory paragraphs hereto.
Floating Rate Exchange Notes: See section 2(a) hereof.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, dated as of April 24, 1998, by and
among the Issuers and United States Trust Company of New York, as Trustee,
pursuant to which the Notes and the Guarantees are being issued, as the same may
be amended or supplemented from time to time in accordance with the terms
thereof.
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Initial Purchasers: See the introductory paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(n) hereof.
Issue Date: April_24, 1998, the date of original issuance of
the Notes.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Offering Memorandum: The final offering memorandum of the
Company dated April_17, 1998, in respect of the offering of the Notes.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, trustee, corporation, partnership,
joint stock company, trust, unincorporated association, union, business
association, firm or other legal entity.
Private Exchange: See Section 2 hereof.
Private Exchange Notes: See Section 2 hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any
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prospectus subject to completion and a prospectus that includes any information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act and
any term sheet filed pursuant to Rule 434 under the Securities Act), as amended
or supplemented by any prospectus supplement, and all other amendments and
supplements to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such Prospectus.
Purchase Agreement: See the introductory paragraphs hereof.
Records: See Section 5(n) hereof.
Registrable Notes: Each Note upon its original issuance and at
all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until (i)_a Registration Statement (other than, with respect
to any Exchange Note as to which Section 2(c)(iv) hereof is applicable, the
Exchange Offer Registration Statement) covering such Note, Exchange Note or
Private Exchange Note has been declared effective by the SEC and such Note,
Exchange Note or such Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Registration Statement, (ii)_such
Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or
Exchange Notes that may be resold without restriction under state and federal
securities laws (including, without limitation, the prospectus delivery
requirements under the Securities Act), (iii)_such Note, Exchange Note or
Private Exchange Note, as the case may be, ceases to be outstanding for
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purposes of the Indenture or (iv)_such Note, Exchange Note or Private Exchange
Note, as the case may be, is resold pursuant to Rule 144 under the Securities
Act.
Registration Statement: Any registration statement of the
Company and/or the Guarantors that covers any of the Notes, the Exchange Notes
or the Private Exchange Notes (and the related Guarantees) filed with the SEC
under the Securities Act, 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 the issuer of such securities
being free of the registration and prospectus delivery requirements of the
Securities Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule (other than
Rule_144) or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2 hereof.
Shelf Registration: See Section 3(b) hereof.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and the
trustee (if any) under any indenture governing the Exchange
Notes and Private Exchange Notes.
Underwritten registration or underwritten offering: A
registration in which securities of one or more of the Issuers are sold to an
underwriter for reoffering to the public.
2. Exchange Offer
(1) The Issuers shall file with the SEC, no
later than the Filing Date, a Registration
Statement (the "Exchange Offer Registration
Statement") on an appropriate registration
form with respect to a registered offer (the
"Exchange Offer") to exchange any and all of
the Registrable Notes for senior
subordinated notes of the Company having a
like aggregate principal amount, guaranteed
on a senior subordinated basis by the
Guarantors, that are identical in all
material respects to the Fixed Rate Notes
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and the Floating Rate Notes, as applicable,
except that such notes shall have been
registered pursuant to an effective
Registration Statement under the Securities
Act and shall contain no restrictive legend
thereon (the "Fixed Rate Exchange Notes and
the Floating Rate Exchange Notes,"
respectively, and, together, "Exchange
Notes"), and which are entitled to the
benefits of the Indenture or a trust
indenture which is identical in all material
respects to the Indenture (other than such
changes to the Indenture or any such
identical trust indenture as are necessary
to comply with the TIA) and which, in either
case, has been qualified under the TIA. The
Exchange Offer shall comply with all
applicable tender offer rules and
regulations under the Exchange Act and other
applicable law. The Issuers shall use their
best efforts to (x)_cause the Exchange Offer
Registration Statement to be declared
effective under the Securities Act on or
before the Effectiveness Date; (y)_keep the
Exchange Offer open for at least 30 calendar
days (or longer if required by applicable
law) after the date that notice of the
Exchange Offer is mailed to Holders; and
(z)_consummate the Exchange Offer on or
prior to the 165th day following the Issue
Date. If, after the Exchange Offer
Registration Statement is initially declared
effective by the SEC, the Exchange Offer or
the issuance of the Exchange Notes
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thereunder is interfered with by any stop
order, injunction or other order or
requirement of the SEC or any other
governmental agency or court, the Exchange
Offer Registration Statement shall be deemed
not to have become effective for purposes of
this Agreement.
Each Holder that participates in the Exchange Offer will be
required, as a condition to its participation in the Exchange Offer, to
represent to the Company in writing (which may be contained in the applicable
letter of transmittal) that any Exchange Notes to be received by it will be
acquired in the ordinary course of its business, that at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution of the Exchange
Notes in violation of the provisions of the Securities Act, and that such Holder
is not an affiliate of the Company within the meaning of the Securities Act.
Upon consummation of the Exchange Offer in accordance with
this Section_2, the provisions of this Agreement shall continue to apply,
mutatis mutandis, solely with respect to Registrable Notes that are Private
Exchange Notes, Exchange Notes as to which Section 2(c)(iv) is applicable and
Exchange Notes held by Participating Broker-Dealers (as defined), and the
Issuers shall have no further obligation to register Registrable Notes (other
than Private Exchange Notes and other than in respect of any Exchange Notes as
to which clause 2(c)(iv) hereof applies) pursuant to Section_3 hereof.
No securities other than the Exchange Notes and Guarantees
shall be included in the Exchange Offer Registration Statement.
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(2) The Issuers shall include within the
Prospectus contained in the Exchange Offer
Registration Statement a section entitled
"Plan of Distribution," reasonably
acceptable to the Initial Purchasers, which
shall contain a summary statement of the
positions taken or policies made by the
staff of the SEC with respect to the
potential "underwriter" status of any
broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Exchange
Act) of Exchange Notes received by such
broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), 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 expressly permit, 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
permitted by applicable policies and
regulations of the SEC, all Participating
Broker-Dealers, and include a statement
describing the means by which Participating
Broker-Dealers may resell the Exchange Notes
in compliance with the Securities Act.
The Issuers shall use their best efforts to keep the Exchange
Offer Registration Statement effective and to amend and supplement the
Prospectus contained therein in order to
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permit such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as is necessary to comply with applicable law in connection with any resale of
the Exchange Notes covered thereby; provided, however, that such period shall
not exceed 180 days after the consummation of the Exchange Offer (or such longer
period if extended pursuant to the last paragraph of Section 5 hereof) (the
"Applicable Period").
If, prior to consummation of the Exchange Offer, any Initial
Purchaser holds any Notes acquired by it that have, or that are reasonably
likely to be determined to have, the status of an unsold allotment in an initial
distribution, the Company upon the request of any such Initial Purchaser shall
simultaneously with the delivery of the Exchange Notes in the Exchange Offer,
issue and deliver to any such Initial Purchaser, in exchange (the "Private
Exchange") for such Notes held by any such Initial Purchaser, senior
subordinated notes of the Company having a like principal amount (the "Private
Exchange Notes") of the Company, guaranteed on a senior subordinated basis by
the Guarantors, that are identical in all material respects to the Fixed Rate
Exchange Notes and the Floating Rate Exchange Notes, as applicable, except for
the placement of a restrictive legend on such Private Exchange Notes. The
Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes
will accrue from (A) the later of (i) the last interest payment date on which
interest was paid on the Notes surrendered in exchange therefor or (ii) if the
Notes are surrendered for exchange on a date in a period which includes the
record date for an interest payment date to occur on or
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after the date of such exchange and as to which interest will be paid, the date
of such interest payment date or (B) if no interest has been paid on the Notes,
from the date of the original issuance of the Notes.
In connection with the Exchange Offer, the Issuers shall:
(1) mail, or cause to be mailed, to each Holder
entitled to participate in the Exchange
Offer a copy of the Prospectus forming part
of the Exchange Offer Registration
Statement, together with an appropriate
letter of transmittal and related documents;
(2) keep the Exchange Offer open for not less
than 30 calendar days after the date that
notice of the Exchange Offer is mailed to
Holders (or longer if required by applicable
law);
(3) 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;
(4) permit Holders to withdraw tendered Notes at
any time prior to the close of business, New
York time, on the last business day on which
the Exchange Offer shall remain open; and
(5) otherwise comply in all material respects
with all applicable laws, rules and
regulations.
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As soon as practicable after the close of the Exchange Offer
and the Private Exchange, if any, the Issuers shall:
(1) accept for exchange all Registrable Notes
validly tendered and not validly withdrawn
pursuant to the Exchange Offer and the
Private Exchange, if any;
(2) deliver to the Trustee for cancellation all
Registrable Notes so accepted for exchange;
and
(3) cause the Trustee to authenticate and
deliver promptly to each Holder of 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.
The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than that (i)_the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable law or any applicable
interpretation of the staff of the SEC, (ii)_no action or proceeding shall have
been instituted or threatened in any court or by any governmental agency which
might materially impair the ability of the Issuers to proceed with the Exchange
Offer or the Private Exchange, and no material adverse development shall have
occurred in any existing action or proceeding with respect to the Issuers and
(iii)_all governmental approvals shall have been obtained, which approvals the
Issuers deem necessary for the consummation of the Exchange Offer or Private
Exchange.
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The Exchange Notes and the Private Exchange Notes shall be
issued under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture and which, in either case, has been qualified under
the TIA or is exempt from such qualification and shall provide that the Exchange
Notes shall not be subject to the transfer restrictions set forth in the
Indenture. The Indenture or such indenture shall provide that the Exchange
Notes, the Private Exchange Notes and the Notes shall vote and consent together
on all matters as one class and that none of the Exchange Notes, the Private
Exchange Notes or the Notes will have the right to vote or consent as a separate
class on any matter.
(3) If, (i)_because of any change in law or in
currently prevailing interpretations of the
staff of the SEC, the Issuers are not
permitted to effect the Exchange Offer,
(ii)_the Exchange Offer is not consummated
within 165 days of the Issue Date, (iii)_any
holder of Private Exchange Notes so requests
in writing to the Company, or (iv)_in the
case of any Holder that participates in the
Exchange Offer, such Holder does not receive
Exchange Notes on the date of the exchange
that may be sold without restriction under
state and federal securities laws (other
than due solely to the status of such Holder
as an affiliate of the Company within the
meaning of the Securities Act), then in the
case of each of clauses (i) to and including
(iv) of this sentence, the Company shall
promptly deliver to the Holders and the
Trustee written notice thereof (the "Shelf
Notice")
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and shall file a Shelf Registration pursuant
to Section_3 hereof.
3. Shelf Registration
If at any time a Shelf Notice is delivered as contemplated by
Section_2(c) hereof, then:
(1) Shelf Registration. The Issuers shall 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 not exchanged in the
Exchange Offer, Private Exchange Notes and
Exchange Notes as to which Section 2(c)(iv)
is applicable (the "Initial Shelf
Registration"). The Issuers shall file with
the SEC the Initial Shelf Registration on or
before the applicable Filing Date. The
Initial Shelf Registration shall be on Form
S-1 or another appropriate form permitting
registration of such Registrable Notes for
resale by Holders in the manner or manners
designated by them (including, without
limitation, one or more underwritten
offerings). The Issuers shall not permit any
securities other than the Registrable Notes
to be included in the Initial Shelf
Registration or any Subsequent Shelf
Registration (as defined below).
The Issuers shall use their best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act on or prior
to the applicable Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date which is two
years from the Issue Date (the "Effectiveness Period"), or such
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shorter period ending when (i)_all Registrable Notes covered by the Initial
Shelf Registration have been sold in the manner set forth and as contemplated in
the Initial Shelf Registration or (ii)_a Subsequent Shelf Registration covering
all of the Registrable Notes covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration has been declared
effective under the Securities Act; provided, however, that the Effectiveness
Period in respect of the Initial Shelf Registration shall be extended to the
extent required to permit dealers to comply with the applicable prospectus
delivery requirements of Rule_174 under the Securities Act and as otherwise
provided herein.
(2) Subsequent Shelf Registrations. If the
Initial Shelf Registration or any Subsequent
Shelf Registration ceases to be effective
for any reason at any time during the
Effectiveness Period (other than because of
the sale of all of the securities registered
thereunder), the Issuers shall use their
best efforts to obtain the prompt withdrawal
of any order suspending the effectiveness
thereof, and in any event shall within
45_days of such cessation of effectiveness
amend the Initial Shelf Registration in a
manner to obtain the withdrawal of the order
suspending the effectiveness thereof, or
file an additional "shelf" Registration
Statement pursuant to Rule 415 covering all
of the Registrable Notes covered by and not
sold under the Initial Shelf Registration or
an earlier Subsequent Shelf Registration
(each, a "Subsequent Shelf Registration").
If a Subsequent Shelf Registration is
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filed, the Issuers shall use their best
efforts to cause the Subsequent Shelf
Registration to be declared effective under
the Securities Act as soon as practicable
after such filing and to keep such
subsequent Shelf Registration continuously
effective for the remainder of the
Effectiveness Period. As used herein the
term "Shelf Registration" means the Initial
Shelf Registration and any Subsequent Shelf
Registration.
(3) Supplements and Amendments. The Issuers
shall promptly supplement and amend any
Shelf Registration if required by the rules,
regulations or instructions applicable to
the registration form used for such Shelf
Registration, if required by the Securities
Act, or if reasonably requested by the
Holders of a majority in aggregate principal
amount of the Registrable Notes covered by
such Registration Statement or by any
underwriter of such Registrable Notes.
4. Additional Interest
(1) The Issuers and the Initial Purchasers agree
that the Holders will suffer damages if the
Issuers fail to fulfill their obligations
under Section_2 or Section_3 hereof and that
it would not be feasible to ascertain the
extent of such damages with precision.
Accordingly, the Company agrees to pay, as
liquidated damages, without duplication,
additional interest on the Notes
("Additional Interest") under the
circumstances and to the extent set forth
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below (each of which shall be given
independent effect):
1) if (A) neither the Exchange Offer
Registration Statement nor the Initial Shelf
Registration has been filed on or prior to
the applicable Filing Date or (B)
notwithstanding that the Company has
consummated or will consummate the Exchange
Offer, the Company is required to file a
Shelf Registration and such Shelf
Registration is not filed on or prior to the
Filing Date applicable thereto, then
commencing on the day after any such Filing
Date, Additional Interest shall accrue on
the principal amount of the Notes at a rate
of 0.25% per annum for the first 90 days
immediately following each such Filing Date,
and the rate of such Additional Interest
shall increase by an additional 0.25% per
annum at the beginning of each subsequent
90-day period;
2) or if (A) neither the Exchange Offer
Registration Statement nor the Initial Shelf
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Registration is declared effective by the
SEC on or prior to the Effectiveness Date
applicable thereto or (B) notwithstanding
that the Company has consummated or will
consummate the Exchange Offer, the Company
is required to file a Shelf Registration and
such Shelf Registration is not declared
effective by the SEC on or prior to the
Effectiveness Date applicable thereto, then,
commencing on the day after the applicable
Effectiveness Date, Additional Interest
shall accrue on the principal amount of the
Notes at a rate of 0.25% per annum for the
first 90 days immediately following each
such Effectiveness Date, and the rate of
such Additional Interest shall increase by
an additional 0.25% per annum at the
beginning of each subsequent 90-day period;
or
3) 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
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prior to the 30th day after the date on
which the Exchange Offer Registration
Statement relating thereto was declared
effective or (B) if applicable, a Shelf
Registration has been declared effective and
such Shelf Registration ceases to be
effective at any time during the
Effectiveness Period (other than such time
as all Notes have been disposed of
thereunder), then Additional Interest shall
accrue on the principal amount of the Notes
at a rate of 0.25% per annum for the first
90 days commencing on the (x) 31st day after
such effective date, in the case of (A)
above, or (y) the day such Shelf
Registration ceases to be effective in the
case of (B) above, and the rate of such
Additional Interest shall increase by an
additional 0.25% per annum at the beginning
of each such subsequent 90-day period;
provided, however, that the rate of Additional Interest that shall accrue on the
Notes may not exceed in the aggregate 1.00% per annum; provided, further,
however, that (1) upon the filing
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of the applicable Exchange Offer Registration Statement or the applicable Shelf
Registration as required hereunder (in the case of clause (i) above of this
Section_4(a)), (2) upon the effectiveness of the applicable Exchange Offer
Registration Statement or the applicable Shelf Registration Statement as
required hereunder (in the case of clause (ii) of this Section_4(a)), or
(3)_upon the exchange of the applicable Exchange Notes for all Notes tendered
(in the case of clause (iii)(A) of this Section_4(a)), or upon the effectiveness
of the applicable Shelf Registration Statement which had ceased to remain
effective (in the case of (iii)(B) of this Section_4(a)), Additional Interest on
the Notes in respect of which such events relate as a result of such clause (or
the relevant subclause thereof), as the case may be, shall cease to accrue.
(2) The Company shall notify the Trustee within
four 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 (a)(i), (a)(ii) or
(a)(iii) of this Section_4 will be payable
in cash semiannually on each May_1 and
November_1 (to the holders of record on the
April_15 and October_15 immediately
preceding such dates), commencing with the
first such date occurring after any such
Additional Interest commences to accrue. The
amount of Additional Interest will be
determined by multiplying the applicable
Additional Interest rate by the principal
amount of the Registrable Notes, multiplied
by a fraction, the numerator of which is the
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number of days such Additional Interest rate
was applicable during such period
(determined on the basis of a 360-day year
comprised of twelve 30-day months and, in
the case of a partial month, the actual
number of days elapsed), and the denominator
of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement
pursuant to Sections 2 or 3 hereof, the Issuers shall effect such registrations
to permit the sale of the securities covered thereby in accordance with the
intended method or methods of disposition thereof, and pursuant thereto and in
connection with any Registration Statement filed by the Issuers hereunder each
of the Issuers shall:
(1) Prepare and file with the SEC prior to the
applicable Filing Date, a Registration
Statement or Registration Statements as
prescribed by Sections 2 or 3 hereof, and
use its best efforts to cause each such
Registration Statement to become effective
and remain effective as provided herein;
provided, however, that, if (1) such filing
is pursuant to Section_3 hereof, or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to
Section 2 hereof is required to be delivered
under the Securities Act by any
Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable
Period relating thereto, before filing any
Registration Statement or Prospectus or any
amendments or supplements thereto, the
Issuers shall furnish to and afford the
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Holders of the Registrable Notes included in
such Registration Statement or each such
Participating Broker-Dealer, as the case may
be, their counsel and the managing
underwriters, if any, a reasonable
opportunity to review copies of all such
documents (including copies of any documents
to be incorporated by reference therein and
all exhibits thereto) proposed to be filed
(in each case at least five days prior to
such filing, or such later date as is
reasonable under the circumstances). The
Issuers shall not file any Registration
Statement or Prospectus or any amendments or
supplements thereto if the Holders of a
majority in aggregate principal amount of
the Registrable Notes included in such
Registration Statement, or any such
Participating Broker-Dealer, as the case may
be, their counsel, or the managing
underwriters, if any, shall reasonably
object.
(2) Prepare and file with the SEC such
amendments and post-effective amendments to
each Shelf Registration Statement or
Exchange Offer Registration Statement, as
the case may be, as may be necessary to keep
such Registration Statement continuously
effective for the Effectiveness Period or
the Applicable Period, as the case may be;
cause the related Prospectus to be
supplemented by any Prospectus supplement
required by applicable law, and as so
supplemented to be filed pursuant to Rule
424 (or any
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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 each
of 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. The Issuers shall be deemed not
to have used their best efforts to keep a
Registration Statement effective during the
Effectiveness Period or the Applicable
Period, as the case may be, relating thereto
if any Issuer voluntarily takes any action
that would result in selling Holders of the
Registrable Notes covered thereby 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 or permitted by
this Agreement.
(3) If (1) a Shelf Registration is filed
pursuant to Section_3 hereof, or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to
Section 2 hereof is required to be delivered
under the Securities Act by any
Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable
Period relating thereto from whom the
27
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Company has received written notice that it
will be a Participating Broker-Dealer in the
Exchange Offer, notify the selling Holders
of Registrable Notes, or each such
Participating Broker-Dealer, as the case may
be, their counsel and the managing
underwriters, if any, promptly (but in any
event within one day), and confirm such
notice in writing, (i)_when a Prospectus or
any Prospectus supplement or post-effective
amendment has been filed, and, with respect
to a Registration Statement or any
post-effective amendment, when the same has
become effective under the Securities Act
(including in such notice a written
statement that any Holder may, upon request,
obtain, at the sole expense of the Issuers,
one conformed copy of such Registration
Statement or post-effective amendment
including financial statements and
schedules, documents incorporated or deemed
to be incorporated by reference and
exhibits), (ii)_of the issuance by the SEC
of any stop order suspending the
effectiveness of a Registration Statement or
of any order preventing or suspending the
use of any preliminary prospectus or the
initiation of any proceedings for that
purpose, (iii)_if at any time when a
prospectus is required by the Securities Act
to be delivered in connection with sales of
the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the
representations and warranties of the
Issuers contained in any
28
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agreement (including any underwriting
agreement) contemplated by Section_5(m)
hereof cease to be true and correct in all
material respects, (iv)_of the receipt by
any Issuer 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 or any information becoming known
that makes any statement made in such
Registration Statement or related Prospectus
or any document incorporated or deemed to be
incorporated therein by reference untrue in
any material respect or that requires the
making of any changes in or amendments or
supplements to such Registration Statement,
Prospectus or documents so that, in the case
of the Registration Statement, it will not
contain any untrue statement of a material
fact or omit to state any material fact
required to be stated therein or necessary
to make the statements therein not
misleading, and that in the case of the
Prospectus, it will not contain any untrue
statement of a material fact or omit to
state any material fact required to be
stated therein or necessary to make the
statements therein, in the light of the
circumstances under which they
29
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were made, not misleading, and (vi)_of the
Company's determination that a
post-effective amendment to a Registration
Statement would be appropriate.
(4) If (1) a Shelf Registration is filed
pursuant to Section_3 hereof, or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to
Section 2 hereof is required to be delivered
under the Securities Act by any
Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable
Period, use its best efforts to prevent the
issuance of any order suspending the
effectiveness of a Registration Statement or
of any order preventing or suspending the
use of a Prospectus or suspending the
qualification (or exemption from
qualification) of any of the Registrable
Notes or the Exchange Notes to be sold by
any Participating Broker-Dealer, for sale in
any jurisdiction, and, if any such order is
issued, to use its best efforts to obtain
the withdrawal of any such order at the
earliest possible moment.
(5) If a Shelf Registration is filed pursuant to
Section_3 and if requested by the managing
underwriter or underwriters (if any), the
Holders of a majority in aggregate principal
amount of the Registrable Notes being sold
in connection with an underwritten offering
or any Participating Broker-Dealer, (i)_as
promptly as practicable incorporate in a
prospectus supplement or post-effective
30
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amendment such information as the managing
underwriter or underwriters (if any), such
Holders, any Participating Broker-Dealer or
counsel for any of them reasonably request
to be included therein, (ii)_make all
required filings of such prospectus
supplement or such post-effective amendment
as soon as practicable after the Company has
received notification of the matters to be
incorporated in such prospectus supplement
or post-effective amendment, and
(iii)_supplement or make amendments to such
Registration Statement.
(6) If (1) a Shelf Registration is filed
pursuant to Section_3 hereof, or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to
Section 2 hereof is required to be delivered
under the Securities Act by any
Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable
Period, furnish to each selling Holder of
Registrable Notes and to each such
Participating Broker-Dealer who so requests
and to their respective counsel and each
managing underwriter, if any, at the sole
expense of the Issuers, one conformed copy
of the Registration Statement or
Registration Statements and each
post-effective amendment thereto, including
financial statements and schedules, and, if
requested, all documents incorporated or
deemed to be incorporated therein by
reference and all exhibits.
31
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(7) If (1) a Shelf Registration is filed
pursuant to Section_3 hereof, or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to
Section 2 hereof is required to be delivered
under the Securities Act by any
Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable
Period, deliver to each selling Holder of
Registrable Notes, or each such
Participating Broker-Dealer, as the case may
be, their respective counsel, and the
underwriters, if any, at the sole expense of
the Issuers, as many copies of the
Prospectus or Prospectuses (including each
form of preliminary prospectus) and each
amendment or supplement thereto and any
documents incorporated by reference therein
as such Persons may reasonably request; and,
subject to the last paragraph of this
Section_5, the Issuers hereby consent to the
use of such Prospectus and each amendment or
supplement thereto by each of the selling
Holders of Registrable 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.
(8) Prior to any public offering of Registrable
Notes or any delivery of a Prospectus
contained in the Exchange Offer
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Registration Statement by any Participating
Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, use its
best efforts to register or qualify, and to
cooperate with the selling Holders of
Registrable Notes or each such Participating
Broker-Dealer, as the case may be, the
managing underwriter or 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 for offer and sale under
the securities or Blue Sky laws of such
jurisdictions within the United States as
any selling Holder, Participating
Broker-Dealer, or the managing underwriter
or underwriters reasonably request in
writing; provided, however, that where
Exchange Notes held by Participating
Broker-Dealers or Registrable Notes are
offered other than through an underwritten
offering, the Issuers agree to cause their
counsel to perform Blue Sky investigations
and file registrations and qualifications
required to be filed pursuant to this
Section 5(h), keep each such registration or
qualification (or exemption therefrom)
effective during the period such
Registration Statement is required to be
kept effective and do any and all other acts
or things reasonably necessary or advisable
to enable the disposition in such
jurisdictions of the Exchange Notes held by
Participating Broker-Dealers or the
33
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Registrable Notes covered by the applicable
Registration Statement; provided, however,
that no Issuer shall be required to (A)
qualify generally to do business in any
jurisdiction where it is not then so
qualified, (B) take any action that would
subject it to general service of process in
any such jurisdiction where it is not then
so subject or (C) subject itself to taxation
in excess of a nominal dollar amount in any
such jurisdiction where it is not then so
subject.
(9) If a Shelf Registration is filed pursuant to
Section_3 hereof, 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
request.
(10) Use its best efforts to cause the
Registrable Notes covered by the
Registration Statement to be registered with
or approved by such other governmental
agencies or authorities as may be reasonably
necessary to enable the seller or sellers
thereof or the underwriter or underwriters,
if any, to consummate the
34
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disposition of such Registrable Notes,
except as may be required solely as a
consequence of the nature of such selling
Holder's business, in which case the Issuers
will cooperate in all reasonable respects
with the filing of such Registration
Statement and the granting of such
approvals.
(11) If (1) a Shelf Registration is filed
pursuant to Section_3 hereof, or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to
Section 2 hereof is required to be delivered
under the Securities Act by any
Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable
Period, upon the occurrence of any event
contemplated by paragraph 5(c)(v) or
5(c)(vi) hereof, as promptly as practicable
prepare and (subject to Section_5(a) hereof)
file with the SEC, at the sole expense of
the Issuers, a supplement or post-effective
amendment to the Registration Statement or a
supplement to the related Prospectus or any
document incorporated or deemed to be
incorporated therein by reference, or file
any other required document so that, as
thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder`
or to the purchasers of the Exchange Notes
to whom such Prospectus will be delivered by
a Participating Broker-Dealer, any such
Prospectus will not contain an untrue
statement of a material fact or omit to
35
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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.
(12) Prior to the effective date of the first
Registration Statement relating to the
Registrable Notes, (i)_provide the Trustee
with certificates for the Registrable Notes
in a form eligible for deposit with The
Depository Trust Company and (ii)_provide a
CUSIP number for the Registrable Notes.
(13) In connection with any underwritten offering
of Registrable Notes pursuant to a Shelf
Registration, enter into an underwriting
agreement as is customary in underwritten
offerings of debt securities similar to the
Notes in form and substance reasonably
satisfactory to the Company and take all
such other actions as are reasonably
requested by the managing underwriter or
underwriters in order to expedite or
facilitate the registration or the
disposition of such Registrable Notes and,
in such connection, (i)_make such
representations and warranties to, and
covenants with, the underwriters with
respect to the business of the Issuers and
the subsidiaries of the Issuers and the
Registration Statement, Prospectus and
documents, if any, incorporated or deemed to
be incorporated by reference therein, in
each case, as are customarily made by
issuers to underwriters in underwritten
offerings of debt securities similar to the
36
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Notes, and confirm the same in writing if
and when requested in form and substance
reasonably satisfactory to the Company;
(ii)_obtain the written opinions of counsel
to the Issuers and written updates thereof
in form, scope and substance reasonably
satisfactory to the managing underwriter or
underwriters, addressed to the underwriters
covering the matters customarily covered in
opinions reasonably requested in
underwritten offerings and such other
matters as may be reasonably requested by
the managing underwriter or underwriters;
(iii)_use its best efforts to obtain "cold
comfort" letters and updates thereof in
form, scope and substance reasonably
satisfactory to the managing underwriter or
underwriters from the independent public
accountants of the Company (and, if
necessary, any other independent public
accountants of the Company, any subsidiary
of the Company or of any business acquired
by the Company for which financial
statements and financial data are, or are
required to be, included or incorporated by
reference in the Registration Statement),
addressed to each of the underwriters, such
letters to be in customary form and covering
matters of the type customarily covered in
"cold comfort" letters in connection with
underwritten offerings of debt securities
similar to the Notes and such other matters
as reasonably requested by the managing
underwriter or underwriters as permitted by
the Statement on Auditing
37
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Standards No. 72; and (iv)_if an
underwriting agreement is entered into, the
same shall contain indemnification
provisions and procedures no less favorable
to the sellers and underwriters, if any,
than those set forth in Section_7 hereof (or
such other provisions and procedures
acceptable to Holders of a majority in
aggregate principal amount of Registrable
Notes covered by such Registration Statement
and the managing underwriter or underwriters
or agents, if any). The above shall be done
at each closing under such underwriting
agreement, or as and to the extent required
thereunder.
(14) If (1) a Shelf Registration is filed
pursuant to Section_3 hereof, or (2) a
Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to
Section 2 hereof is required to be delivered
under the Securities Act by any
Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable
Period, make available for inspection by any
selling Holder of such 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"), at the offices where
38
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normally kept, during reasonable business
hours, all financial and other records,
pertinent corporate documents and
instruments of the Issuers and subsidiaries
of the Issuers (collectively, the "Records")
as shall be reasonably necessary to enable
them to exercise any applicable due
diligence responsibilities, and cause the
officers, directors and employees of the
Issuers and any of their subsidiaries to
supply all information reasonably requested
by any such Inspector in connection with
such Registration Statement and Prospectus.
Each Inspector shall agree in writing that
it will keep the Records confidential and
that it will not disclose any of the Records
unless (i)_the disclosure of such Records is
necessary to avoid or correct a material
misstatement or material omission in such
Registration Statement or Prospectus,
(ii)_the release of such Records is ordered
pursuant to a subpoena or other order from a
court of competent jurisdiction, or
(iii)_the information in such Records has
been made generally available to the public
other than as a result of the disclosure or
failure to safeguard by such Inspector;
provided, however, that prior notice shall
be provided as soon as practicable to the
Company of the potential disclosure of any
information by such Inspector pursuant to
clauses (i) or (ii) of this sentence to
permit the Company to obtain a protective
order (or waive the provisions of this
39
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paragraph (n)) and that such Inspector shall
take such actions as are reasonably
necessary to protect the confidentiality of
such information (if practicable) to the
extent such action is otherwise not
inconsistent with, an impairment of or in
derogation of the rights and interests of
the Holder or any Inspector.
(15) Provide an indenture trustee for the
Registrable Notes or the Exchange Notes, as
the case may be, and cause the Indenture or
the trust indenture provided for in Section
2(a) hereof, as the case may be, to be
qualified under the TIA not later than the
effective date of the first Registration
Statement relating to the Registrable Notes;
and in connection therewith, cooperate with
the trustee under any such indenture and the
Holders of the Registrable Notes, to effect
such changes to such indenture as may be
required for such indenture to be so
qualified in accordance with the terms of
the TIA; and execute, and use its best
efforts to cause such trustee to execute,
all documents as may be required to effect
such changes, and all other forms and
documents required to be filed with the SEC
to enable such indenture to be so qualified
in a timely manner.
(16) Comply with all applicable rules and
regulations of the SEC and make generally
available to its securityholders with regard
to any applicable Registration Statement, a
consolidated earnings
40
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statement satisfying the provisions of
Section 11(a) of the Securities Act and
Rule_158 thereunder (or any similar rule
promulgated under the Securities Act) no
later than 45 days after the end of any
fiscal quarter (or 90 days after the end of
any 12-month period if such period is a
fiscal year) (i)_commencing at the end of
any fiscal quarter in which Registrable
Notes are sold to underwriters in a firm
commitment or best efforts underwritten
offering and (ii)_if not sold to
underwriters in such an offering, commencing
on the first day of the first fiscal quarter
of the Company after the effective date of a
Registration Statement, which statements
shall cover said 12-month periods.
(17) Upon consummation of the Exchange Offer or a
Private Exchange, obtain an opinion of
counsel to the Company, in a form customary
for underwritten transactions, addressed to
the Trustee for the benefit of all Holders
of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as
the case may be, that the Exchange Notes or
Private Exchange Notes, as the case may be,
and the related Guarantees and the related
indenture constitute legal, valid and
binding obligations of the Company and each
of the Guarantors, enforceable against them
in accordance with their respective terms,
subject to customary exceptions and
qualifications.
41
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(18) If the Exchange Offer or a Private Exchange
is to be consummated, upon delivery of the
Registrable Notes by 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, the Company shall xxxx, or cause to
be marked, on such Registrable Notes that
such Registrable Notes are being canceled in
exchange for the Exchange Notes or the
Private Exchange Notes, as the case may be;
in no event shall such Registrable Notes be
marked as paid or otherwise satisfied.
(19) 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 National Association of Securities
Dealers, Inc. (the "NASD").
(20) Use its best efforts to take all other steps
reasonably necessary to effect the
registration of the Exchange Notes and/or
Registrable Notes covered by a Registration
Statement contemplated hereby.
The Company may require each seller of Registrable Notes as to
which any registration is being effected to furnish to the Company such
information regarding such seller and the distribution of such Registrable Notes
as the Company may, from time to time, reasonably request. The Company may
exclude from such registration the Registrable Notes of any seller so long as
such seller fails to furnish such information within a reasonable time after
receiving such request. Each seller as to which any Shelf Registration is being
effected agrees to
42
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furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder of any securities of the Company, then such
Holder shall have the right to require (i) the insertion therein of language, in
form and substance reasonably satisfactory to such Holder, to the effect that
the holding by such Holder of such securities is not to be construed as a
recommendation by such Holder of the investment quality of the securities
covered thereby and that such holding does not imply that such Holder will
assist in meeting any future financial requirements of the Company, or (ii) in
the event that such reference to such Holder by name or otherwise is not
required by the Securities Act or any similar federal statute then in force, the
deletion of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by its acquisition of such Registrable Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, that,
upon actual receipt of any notice from the Company of the happening of any event
of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi)
hereof, such Holder will forthwith discontinue disposition of such Registrable
Notes covered by such Registration Statement or Prospectus or Exchange Notes to
be sold by such Holder or Participating Broker-Dealer, as the case may be, until
such Holder's or Participating Broker-Dealer's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof, or until
it is advised in writing (the "Advice") by the
43
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Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event that the
Company shall give any such notice, the Applicable Period or the Effectiveness
Period, as applicable, shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of Registrable Notes covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6. Registration Expenses
All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers (other than any underwriting
discounts or commissions) shall be borne by the Issuers whether or not the
Exchange Offer Registration Statement or any Shelf Registration is filed or
becomes effective or the Exchange Offer is consummated, including, without
limitation, (i)_all registration and filing fees (including, without limitation,
(A)_fees with respect to filings required to be made with the NASD in connection
with an underwritten offering and (B)_fees and expenses of compliance with state
securities or Blue Sky laws (including, without limitation, 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 of Registrable Notes are located, in the
case of the Exchange Notes, or (y)_as provided in Section 5(h) hereof, in the
case of Registrable Notes or Exchange Notes to be sold by a Participating
Broker-Dealer during the Applicable Period)), (ii)_printing expenses, including,
without limitation, expenses of printing
44
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certificates for Registrable Notes or Exchange Notes in a form eligible for
deposit with The Depository Trust Company and of printing prospectuses if the
printing of prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or in respect of
Registrable Notes or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, as the case may be, (iii) messenger,
telephone and delivery expenses, (iv)_fees and disbursements of counsel for the
Company and reasonable fees and disbursements of one special counsel for all of
the sellers of Registrable Notes (exclusive of any counsel retained pursuant to
Section 7 hereof), (v)_fees and disbursements of all independent certified
public accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi)_Securities Act liability
insurance, if the Company desires such insurance, (vii)_fees and expenses of all
other Persons retained by the Issuer, (viii)_internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties), (ix)_the
expense of any annual audit, (x)_any fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
and the obtaining of a rating of the securities, in each case, if applicable,
(xi)_the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, indentures and any other
documents necessary in order to comply with this Agreement, and (xii) the fees
and expenses of the Trustee and any exchange agent and the fees and expenses of
their counsel.
7. Indemnification
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(1) Each of the Issuers, jointly and severally,
agrees to indemnify and hold harmless each
Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange
Notes during the Applicable Period, the
affiliates, officers, directors,
representatives, employees and agents of
each such Person, and each Person, if any,
who controls any such Person within the
meaning of either Section_15 of the
Securities Act or Section_20 of the Exchange
Act (each, a "Participant"), from and
against any and all losses, claims, damages,
judgments, liabilities and expenses
(including, without limitation, the
reasonable legal fees and other reasonable
expenses actually incurred in connection
with any suit, action or proceeding or any
claim asserted) caused by, arising out of or
based upon any untrue statement or alleged
untrue statement of a material fact
contained in any Registration Statement (or
any amendment thereto) or Prospectus (as
amended or supplemented if the Company shall
have furnished any amendments or supplements
thereto) or any preliminary prospectus, or
caused by, arising out of or based upon any
omission or alleged omission to state
therein a material fact required to be
stated therein or necessary to make the
statements therein, in the case of the
Prospectus in light of the circumstances
under which they were made, not misleading,
except insofar as such losses, claims,
46
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damages or liabilities are caused by any
untrue statement or omission or alleged
untrue statement or omission made in
reliance upon and in conformity with
information relating to any Participant
furnished to the Company in writing by such
Participant expressly for use therein;
provided that the Company shall not be
liable to any such Participant, with respect
to any untrue statement or alleged untrue
statement or omission or alleged omission in
any preliminary Prospectus to the extent
that any such loss, claim, damage, judgment,
liability or expense of any Participant
results from the fact that such Participant
sold Registrable Notes or Exchange Notes to
a person to whom there was not sent or
given, at or prior to the written
confirmation of such sale, a copy of the
final Prospectus as then amended or
supplemented if required by applicable law
and if the Company had previously furnished
copies thereof in accordance with the terms
of this Agreement to such Participant and
the untrue statement or omission of a
material fact contained in the preliminary
Prospectus was corrected in the final
Prospectus and the claims asserted by such
person do not include allegations of other
untrue statements or omissions of material
facts made in the final Prospectus which
allegations are upheld in a final judgment.
Any amounts advanced by the Company to an
indemnified party pursuant to this Section_7
as a result of such losses shall
47
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be returned to the Company if it shall be
finally determined by such a court in a
judgment not subject to appeal or final
review that such indemnified party was not
entitled to indemnification by the Company.
(2) Each Participant agrees, severally and not
jointly, to indemnify and hold harmless the
Issuers, their respective affiliates,
officers, directors, representatives,
employees and agents and each Person who
controls the Company within the meaning of
Section_15 of the Securities Act or
Section_20 of the Exchange Act to the same
extent (but on a several, and not joint,
basis) as the foregoing indemnity from the
Issuers to each Participant, but only with
reference to information relating to such
Participant furnished to the Company in
writing by such Participant expressly for
use in any Registration Statement or
Prospectus, any amendment or supplement
thereto, or any preliminary prospectus. The
liability of any Participant under this
paragraph shall in no event exceed the
proceeds received by such Participant from
sales of Registrable Notes or Exchange Notes
giving rise to such obligations.
(3) If any suit, action, proceeding (including
any governmental or regulatory
investigation), claim or demand shall be
brought or asserted against any Person in
respect of which indemnity may be sought
pursuant to either of the two preceding
paragraphs, such Person (the "Indemnified
Person") shall promptly notify the Persons
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against whom such indemnity may be sought
(the "Indemnifying Persons") in writing, and
the Indemnifying Persons, upon request of
the Indemnified Person, shall retain counsel
reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person
and any others the Indemnifying Persons may
reasonably designate in such proceeding and
shall pay the fees and expenses actually
incurred by such counsel related to such
proceeding; provided, however, that the
failure to so notify the Indemnifying
Persons will not relieve it from any
liability which it may have hereunder or
otherwise. In any such proceeding, any
Indemnified Person shall have the right to
retain its own counsel, but the fees and
expenses of such counsel shall be at the
expense of such Indemnified Person unless
(i)_the Indemnifying Persons and the
Indemnified Person shall have mutually
agreed to the contrary, (ii)_the
Indemnifying Persons shall have failed
within a reasonable period of time to retain
counsel reasonably satisfactory to the
Indemnified Person or (iii)_the named
parties in any such proceeding (including
any impleaded parties) include both any
Indemnifying Person and the Indemnified
Person or any affiliate thereof and such
Indemnified Person shall have been advised
by counsel that there may be one or more
legal defenses available to it which are
different from or additional to those
available to the Indemnifying Person or
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that representation of both parties by the
same counsel would be inappropriate due to
actual or potential differing interests
between them. It is understood that, unless
there exists a conflict among Indemnified
persons, the Indemnifying Persons shall not,
in connection with such proceeding or
separate but substantially similar related
proceeding in the same jurisdiction arising
out of the same general allegations, be
liable for the fees and expenses of more
than one separate firm (in addition to any
local counsel) for all Indemnified Persons,
and that all such fees and expenses shall be
reimbursed promptly as they are incurred.
Any such separate firm for the Participants
and such control Persons of Participants
shall be designated in writing by
Participants who sold a majority in interest
of Registrable Notes and Exchange Notes sold
by all such Participants and shall be
reasonably acceptable to the Company, and
any such separate firm for the Issuers,
their affiliates, officers, directors,
representatives, employees and agents and
the control person of the Company shall be
designated in writing by the Company and
shall be reasonably acceptable to the
representatives of the Holders.
The Indemnifying Persons shall not be liable for any
settlement of any proceeding effected without its prior written consent (which
consent shall not be unreasonably withheld or delayed), but if settled with such
consent or if there be a final non-appealable judgment for the plaintiff for
which the
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Indemnified Person is entitled to indemnification pursuant to this Agreement,
each of the Indemnifying Persons agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Persons (which consent shall not be unreasonably
withheld or delayed), effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, or indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A)_includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of such
Indemnified Person.
(4) If the indemnification provided for in the
first and second paragraphs of this
Section_7 is for any reason unavailable to,
or insufficient to hold harmless, an
Indemnified Person in respect of any losses,
claims, damages or liabilities referred to
therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying
such Indemnified Person thereunder and in
order to provide for just and equitable
contribution, shall contribute to the amount
paid or payable by such Indemnified Person
as a result of such losses, claims, damages
or liabilities in such proportion as is
appropriate to reflect (i) the relative
benefits received by the Indemnifying Person
or Persons on
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the one hand and the Indemnified Person or
Persons on the other from the offering of
the Notes or (ii) if the allocation provided
by the foregoing clause (i) is not permitted
by applicable law, not only such relative
benefits but also the relative fault of the
Indemnifying Person or Persons on the one
hand and the Indemnified Person or Persons
on the other in connection with the
statements or omissions or alleged
statements or omissions that resulted in
such losses, claims, damages or liabilities
(or actions in respect thereof) as well as
any other relevant equitable considerations.
The relative benefits received by the Issuers on the one hand
and the Participants on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (net of discounts and commissions but
before deducting expenses) of the Notes received by the Issuers bears to the
total proceeds received by such Participant from the sale of Registrable Notes
or Exchange Notes, as the case may be. The relative fault of the parties shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Issuers on the one hand
or such Participant or such other Indemnified Person, as the case may be, on the
other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(5) The parties agree that it would not be just
and equitable if contribution pursuant to
52
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this Section_7 were determined by pro rata
allocation (even if the Participants were
treated as one entity for such purpose) or
by any other method of allocation that does
not take account of the equitable
considerations referred to in the
immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as
a result of the losses, claims, damages,
judgments, liabilities and expenses referred
to in the immediately preceding paragraph
shall be deemed to include, subject to the
limitations set forth above, any reasonable
legal or other expenses actually incurred by
such Indemnified Person in connection with
investigating or defending any such action
or claim. Notwithstanding the provisions of
this Section_7, in no event shall a
Participant be required to contribute any
amount in excess of the amount by which
proceeds received by such Participant from
sales of Registrable Notes or Exchange
Notes, as the case may be, exceeds the
amount of any damages that such Participant
has otherwise been required to pay or has
paid by reason of such untrue or alleged
untrue statement or omission or alleged
omission. No Person guilty of fraudulent
misrepresentation (within the meaning of
Section_11(f) of the Securities Act) shall
be entitled to contribution from any Person
who was not guilty of such fraudulent
misrepresentation.
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(6) Any losses, claims, damages, liabilities or
expenses for which an indemnified party is
entitled to indemnification or contribution
under this Section 7 shall be paid by the
Indemnifying Person to the Indemnified
Person as such losses, claims, damages,
liabilities or expenses are incurred. The
indemnity and contribution agreements
contained in this Section_7 and the
representations and warranties of the
Issuers set forth in this Agreement shall
remain operative and in full force and
effect, regardless of (i)_any investigation
made by or on behalf of any Holder or any
person who controls a Holder, the Issuers,
their directors, officers, employees or
agents or any person controlling the
Company, and (ii)_any termination of this
Agreement.
(7) The indemnity and contribution agreements
contained in this Section_7 will be in
addition to any liability which the
Indemnifying Persons may otherwise have to
the Indemnified Persons referred to above.
8. Rules 144 and 144A
Each of the Issuers covenants and agrees that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time such Issuer is not required to file such reports, such
Issuer will, upon the request of any Holder or beneficial owner of Registrable
Notes, make available such information necessary to permit sales pursuant to
Rule 144A under the Securities Act. Each of the Issuers further
54
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covenants and agrees, for so long as any Registrable Notes remain outstanding
that it will make available to any Holder of Registrable Notes, all to the
extent required from time to time to enable such holder to sell Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144(k) and Rule 144A under the Securities Act,
as such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC.
9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Company.
No Holder of Registrable Notes may participate in any
underwritten registration hereunder unless such Holder (a)_agrees to sell such
Holder's Registrable Notes on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b)_completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. Miscellaneous
(1) No Inconsistent Agreements. The Issuers have
not, as of the date hereof, and the Issuers
shall not, after the date of this Agreement,
enter into any agreement with respect to any
of its securities that is
55
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inconsistent with the rights granted to the
Holders of Registrable Notes in this
Agreement or otherwise conflicts with the
provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict
with and are not inconsistent with the
rights granted to the holders of the
Issuers' other issued and outstanding
securities under any such agreements. The
Issuers will not enter into any agreement
with respect to any of their securities
which will grant to any Person piggy-back
registration rights with respect to any
Registration Statement.
(2) Adjustments Affecting Registrable Notes. The
Issuers 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
of Registrable Notes to include such
Registrable Notes in a registration
undertaken pursuant to this Agreement.
(3) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified
or supplemented, and waivers or consents to
departures from the provisions hereof may
not be given, otherwise than with the prior
written consent of (I) the Company and
(II)(A)_the Holders of not less than a
majority in aggregate principal amount of
the then outstanding Registrable Notes and
(B)_in circumstances that would adversely
affect the Participating Broker-Dealers, the
Participating Broker-Dealers holding not
less than a majority in aggregate
56
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principal amount of the Exchange Notes held
by all Participating Broker-Dealers;
provided, however, that Section_7 and this
Section_10(c) may not be amended, modified
or supplemented without the prior written
consent of each Holder and each
Participating Broker-Dealer (including any
person who was a Holder or Participating
Broker-Dealer of Registrable Notes or
Exchange Notes, as the case may be, disposed
of pursuant to any Registration Statement)
affected by any such amendment, modification
or supplement. 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 sold pursuant to a
Registration Statement and that does not
directly or indirectly affect, impair, limit
or compromise the rights of other Holders of
Registrable Notes may be given by Holders of
at least a majority in aggregate principal
amount of the Registrable Notes being sold
pursuant to such Registration Statement.
(4) Notices. All notices and other
communications (including, without
limitation, any notices or other
communications to the Trustee) provided for
or permitted hereunder shall be made in
writing by hand-delivery, registered
first-class mail, next-day air courier or
facsimile:
57
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1) if to a Holder of the Registrable Notes or
any Participating Broker-Dealer, at the most
current address of such Holder or
Participating Broker-Dealer, as the case may
be, set forth on the records of the
registrar under the Indenture.
2) if to the Issuers, at the address as
follows:
c/o Eye Care Center of America, Inc.
00000 Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
with a copy to
Xxxxxxxx, Xxxxxxx & Xxxxxxx
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxx, Esq.
58
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All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; one business
day after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address and in the manner specified in such Indenture.
(5) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon
the successors and assigns of each of the
parties hereto, the Holders and the
Participating Broker-Dealers.
(6) Subsidiary Guarantors. If any Guarantor
becomes a party to this Agreement and is
subsequently released from its obligations
under the Indenture in accordance with the
terms thereof then such Guarantor shall be
released from its obligations hereunder. If
any Guarantor becomes a party to the
Indenture after the date hereof as a
Guarantor, by becoming a party to the
Indenture, such Guarantor agrees to become a
party to this Agreement as a Guarantor.
(7) Counterparts. This Agreement may be executed
in any number of counterparts and by the
parties hereto in separate counterparts,
each of which when so executed shall be
deemed to be an original and all of which
taken together shall constitute one and the
same agreement.
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(8) Headings. The headings in this Agreement are
for convenience of reference only and shall
not limit or otherwise affect the meaning
hereof.
(9) GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS
APPLIED TO CONTRACTS MADE AND PERFORMED
ENTIRELY WITHIN THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
(10) 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.
(11) Securities Held by the Company or Its
Affiliates. Whenever the consent or approval
of Holders of a specified
60
percentage of Registrable Notes is required
hereunder, Registrable Notes held by any of
the Issuers or their affiliates (as such
term is defined in Rule 405 under the
Securities Act) shall not be counted in
determining whether such consent or approval
was given by the Holders of such required
percentage.
(12) Third-Party Beneficiaries. Holders of
Registrable Notes and Participating
Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this
Agreement may be enforced by such Persons.
(13) Entire Agreement. This Agreement, together
with the Purchase Agreement and the
Indenture, is intended by the parties as a
final and exclusive statement of the
agreement and understanding of the parties
hereto in respect of the subject matter
contained herein and therein and any and all
prior oral or written agreements,
representations, or warranties, contracts,
understandings, correspondence,
conversations and memoranda between the
Holders on the one hand and the Issuers on
the other, or between or among any agents,
representatives, parents, subsidiaries,
affiliates, predecessors in interest or
successors in interest with respect to the
subject matter hereof and thereof are merged
herein and replaced hereby. [SIGNATURE PAGES
FOLLOW]
61
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
EYE CARE CENTERS OF AMERICA, INC.
/s/ Xxxx X. Xxxxxxx
By: _____________________________________________
Name: Xxxx X. Xxxxxxx
Title:
ENCLAVE ADVANCEMENT GROUP, INC.
ECCA MANAGED VISION CARE, INC.
VISIONWORKS HOLDINGS, INC.
VISIONWORKS, INC.
VISIONWORKS PROPERTIES, INC.
EYE CARE HOLDINGS, INC.
VISIONARY RETAIL MANAGEMENT, INC.
62
VISIONARY PROPERTIES, INC.
VISIONARY MSO, INC.
THE XXXXX GROUP, INC.
HOUR EYES, INC.
SKYLAB OPTICAL, INC.
METROPOLITAN VISION SERVICES,
INC.
/s/ Xxxx X. Xxxxxxx
By: _____________________________________________
Name: Xxxx X. Xxxxxxx
Title:
63
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
BT ALEX. XXXXX INCORPORATED
By:
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
Name:
Title:
