EXHIBIT 4.2
EXECUTION
COPY
Exchange and Registration Rights Agreement
Dated as of August 19, 1999
by and among
Xxxxxx, Inc.,
The Guarantors listed on the Signature Pages Hereto
and
Xxxxxx Brothers Inc.
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this
"Agreement") is made and entered into as of August 19, 1999 by
and among Xxxxxx, Inc., a Delaware corporation (the "Company")
and Xxxxxx International, Inc., a Delaware Corporation ("Xxxxxx
International"), BI Holdings Corp., a Delaware corporation,
Xxxxxxxx X. Xxxx Company, a Delaware corporation, BI, L.L.C., a
Delaware limited liability company, Xxxxxx Development Corp., a
Delaware corporation, Omark Properties, Inc., an Oregon
corporation, 4520 Corp., Inc., a Delaware corporation, Gear
Products, Inc., an Oklahoma corporation, Xxxxx Industries, Inc.,
a Kansas corporation, Xxxxxxxxx Manufacturing Corporation, a
Delaware corporation, Federal Cartridge Company, a Minnesota
corporation, Xxxxxxx Outdoor Corporation, a Delaware corporation,
Mocenplaza Development Corp., a Delaware corporation and CTR
Manufacturing, Inc., a North Carolina corporation (collectively,
the "Existing Guarantors"), and Xxxxxx Brothers Inc. (the
"Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement,
dated August 16, 1999 (the "Purchase Agreement"), by and among
the Company, the Existing Guarantors and the Initial Purchaser,
which provides for the sale by the Company to the Initial
Purchaser of $325,000,000 aggregate principal amount of the
Company's 13% Senior Subordinated Notes due 2009 (the "Notes").
The Notes are, and the Exchange Notes (as defined herein) will
be, guaranteed on a senior subordinated basis by the Guarantors
(as defined herein). In order to induce the Initial Purchaser to
purchase the Notes, the Company and the Existing Guarantors have
agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchaser set forth
in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms
shall have the following meanings:
Additional Guarantor: Any subsidiary of Xxxxxx International
or the Company that executes a Guarantee under the Indenture
after the date of this Agreement.
Advice: As defined in Section 6 hereof.
Blackout Period: As defined in Section 5(a) hereof.
Blue Sky Application: As defined in Section 8(a) hereof.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Broker-Dealer Transfer Restricted Securities: Exchange Notes
(including the Guarantees) that are acquired by a Restricted
Broker-Dealer for its own account as a result of market-making
activities or other trading activities.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed
"Consummated" for purposes of this Agreement upon the occurrence
of (i) the filing and effectiveness under the Securities Act of
the Exchange Offer Registration Statement relating to the
Exchange Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less
than the minimum period required pursuant to Section 3(b) hereof,
and (iii) the delivery by the Company to the Registrar under the
Indenture of Exchange Notes in the same aggregate principal
amount as the aggregate principal amount of Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Notes, each
Interest Payment Date.
Effectiveness Target Date: As defined in Section 5 hereof.
Exchange Act: The Securities Exchange Act of 1934, as
amended.
Exchange Notes: The Company's 13% Senior Subordinated Notes
due 2009 to be issued pursuant to the Indenture in the Exchange
Offer, together with the related Guarantees.
Exchange Offer: The registration by the Company under the
Securities Act of the Exchange Notes pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all
outstanding Transfer Restricted Securities the opportunity to
exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Notes in an aggregate principal
amount equal to the aggregate principal amount of the Transfer
Restricted Securities validly tendered in such exchange offer by
such Holders.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related
Prospectus.
Exempt Resales: The transactions in which the Initial
Purchaser proposes to sell the Notes to (i) certain "qualified
institutional buyers," as such term is defined in Rule 144A under
the Securities Act, and (ii) outside the United States to Persons
other than U.S. Persons in offshore transactions meeting the
requirements of Rule 904 of Regulation S under the Securities
Act.
Guarantee: The Guarantee by a Guarantor of the Company's
obligations under the Notes, the Exchange Notes and the
Indenture.
Guarantors: The Additional Guarantors and the Existing
Guarantors.
Holders: As defined in Sections 2(b) and 2(c) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of the date hereof,
among the Company, the Existing Guarantors and United States
Trust Company of New York, as trustee (the "Trustee"), pursuant
to which the Notes and the Exchange Notes are to be issued, as
such Indenture may be amended or supplemented from time to time
in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the
Notes.
Market-Maker Prospectus: As defined in Section 4(c) hereof.
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, limited
liability company, unincorporated organization, association,
joint-stock company, trust, joint venture, government or any
agency or political subdivision thereof or any other entity.
Prospectus: The prospectus included in a Registration
Statement including, without limitation, a Market-Maker
Prospectus, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-
effective amendments, and all material incorporated by reference
into such Prospectus.
Record Holder: With respect to any Damages Payment Date
relating to Notes, each Person who is a Holder of Notes on the
record date with respect to the Interest Payment Date on which
such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any Registration Statement of the
Company relating to (a) an offering of Exchange Notes pursuant to
an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration
Statement, which is filed pursuant to the provisions of this
Agreement including the registration for resale of Broker-Dealer
Transfer Restricted Securities, in each case including the
Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits
and material incorporated by reference therein.
Restricted Broker-Dealer: Any Broker-Dealer that is an
affiliate of the Company that holds Broker-Dealer Transfer
Restricted Securities.
Securities Act: The Securities Act of 1933, as amended.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4
hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb) as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note (including the
Guarantees), until the earliest to occur of (a) the date on which
such Note is exchanged by a person other than a Broker-Dealer in
the Exchange Offer in exchange for an Exchange Note that can be
resold to the public by the Holder thereof without complying with
the prospectus delivery requirements of the Securities Act, (b)
the date on which such Note has been effectively registered under
the Securities Act and disposed of in accordance with a Shelf
Registration Statement and (c) the date on which such Note is
sold by the Holder pursuant to Rule 144 under the Securities Act,
may be sold by the Holder pursuant to Rule 144(k) under the
Securities Act or is sold by a Broker-Dealer pursuant to the
"Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus
contained therein).
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities
and Broker-Dealer Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a
"Holder") whenever such Person owns Transfer Restricted
Securities.
(c) Holders of Broker-Dealer Transfer Restricted
Securities. A Restricted Broker-Dealer is deemed to be a holder
of Broker-Dealer Transfer Restricted Securities (each, a
"Holder") whenever such Restricted Broker-Dealer owns Broker-
Dealer Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible
under applicable law or Commission policy (after the procedures
set forth in Section 6(a) below have been complied with), the
Company and the Guarantors shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in
no event later than 120 days after the Closing Date, a
Registration Statement under the Securities Act relating to the
Exchange Notes and the Exchange Offer, (ii) their best efforts to
cause such Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after
the Closing Date, (iii) in connection with the foregoing, file
(A) all pre-effective amendments to such Registration Statement
as may be necessary in order to cause such Registration Statement
to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in
connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the
Exchange Offer, and (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer. The
Exchange Offer shall be on the appropriate form permitting
registration of the Exchange Notes to be offered in exchange for
the Transfer Restricted Securities and to permit resales of Notes
and Exchange Notes held by Broker-Dealers as contemplated by
Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange
Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable Federal and state
securities laws to Consummate the Exchange Offer; provided,
however, that in no event shall such period be less than 20
business days. The Company and the Guarantors shall cause the
Exchange Offer to comply with all applicable Federal and state
securities laws. No securities other than the Exchange Notes
shall be included in the Exchange Offer Registration Statement.
The Company and the Guarantors shall use their best efforts to
cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement
has become effective, but in any event within 30 business days
thereafter or longer if required by applicable Federal and state
securities laws.
(c) The Company and the Guarantors shall indicate in a
"Plan of Distribution" section of the Prospectus contained in the
Exchange Offer Registration Statement that any Broker-Dealer who
holds Notes that are Transfer Restricted Securities and that were
acquired for its own account as a result of market-making
activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may
exchange such Notes pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Securities Act and must, therefore, deliver a
Prospectus meeting the requirements of the Securities Act in
connection with any resales of the Exchange Notes received by
such Broker-Dealer in the Exchange Offer, which Prospectus
delivery requirement may be satisfied by the delivery by such
Broker-Dealer of the Prospectus contained in the Exchange Offer
Registration Statement. Such "Plan of Distribution" section
shall also contain all other information with respect to such
resales by Broker-Dealers that the Commission may require in
order to permit such resales pursuant thereto, but such "Plan of
Distribution" shall not name any such Broker-Dealer or disclose
the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission.
The Company and the Guarantors shall use their best efforts
to keep the Exchange Offer Registration Statement continuously
effective, supplemented and amended as required by the provisions
of Section 6(d) below to the extent necessary to ensure that it
is available for resales of Notes and Exchange Notes acquired by
Broker-Dealers for their own accounts as a result of market-
making activities or other trading activities, and to ensure that
it conforms with the requirements of this Agreement, the
Securities Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of 180
days from the date on which the Exchange Offer Registration
Statement is declared effective.
The Company and the Guarantors shall provide sufficient
copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180 day period in
order to facilitate such resales.
SECTION 4. SHELF REGISTRATION; MARKET-MAKER PROSPECTUS
(a) Shelf Registration. If (i) the Company and the
Guarantors are not required to file an Exchange Offer
Registration Statement or to Consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a)
below have been complied with) or (ii) if any Holder of Transfer
Restricted Securities shall notify the Company prior to the 20th
day following the Consummation of the Exchange Offer that such
Holder (A) is prohibited by applicable law or Commission policy
from participating in the Exchange Offer, or (B) may not resell
the Exchange Notes acquired by it in the Exchange Offer to the
public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C)
is a Broker-Dealer and holds Notes acquired directly from the
Company or one of its affiliates, then the Company and the
Guarantors shall
(x) cause to be filed a Registration Statement pursuant
to Rule 415 under the Securities Act, which may be an
amendment to the Exchange Offer Registration Statement (in
either event, the "Shelf Registration Statement") on or
prior to the earliest to occur of (1) the 30th day after the
date on which the Company determines that it is not required
to file the Exchange Offer Registration Statement, or
permitted to Consummate the Exchange Offer and (2) the 30th
day after the date on which the Company receives notice from
a Holder of Transfer Restricted Securities as contemplated
by clause (ii) of paragraph (a) above (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration
Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have
provided the information required pursuant to Section 4(b)
hereof; and
(y) use their best efforts to cause such Shelf
Registration Statement to be declared effective by the
Commission on or before the 150th day after the Shelf Filing
Deadline.
The Company and the Guarantors shall use their best efforts to
keep such Shelf Registration Statement continuously effective,
supplemented and amended as required by the provisions of
Sections 6(b) and (d) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced
from time to time, for a period of at least two years following
the Closing Date or such shorter period that will terminate when
all Notes covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or become
eligible for resale pursuant to Rule 144 without volume or other
restrictions.
(b) Provision by Holders of Certain Information in
Connection with the Shelf Registration Statement. No Holder of
Transfer Restricted Securities may include any of its Transfer
Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 10 business days after receipt
of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf
Registration Statement or Prospectus or preliminary Prospectus
included therein. No Holder of Transfer Restricted Securities
shall be entitled to Additional Interest pursuant to Section 5
hereof unless and until such Holder shall have used its best
efforts to provide all such reasonably requested information.
Each Holder as to which any Shelf Registration Statement is being
effected agrees to furnish promptly to the Company all
information required to be disclosed in order to make the
information previously furnished to the Company by such Holder
not materially misleading.
(c) Market-Maker Prospectus. The Company and the
Guarantors acknowledge that any Restricted Broker-Dealer holding
Broker-Dealer Transfer Restricted Securities may not resell such
Broker-Dealer Transfer Restricted Securities without delivering a
Prospectus. Consequently, on the date that the Exchange Offer
Registration Statement is filed with the Commission, the Company
and the Guarantors shall file a Registration Statement (which may
be the Exchange Offer Registration Statement or the Shelf
Registration Statement if permitted by the rules and regulations
of the Commission) and shall use their best efforts to cause such
Registration Statement to be declared effective by the Commission
on or prior to the Consummation of the Exchange Offer. The
Company and the Guarantors shall use their best efforts to keep
such Registration Statement continuously effective, supplemented
and amended as required by the provisions of Sections 6(c) and
(d) hereof to the extent necessary to ensure that it is available
for resales of Broker-Dealer Transfer Restricted Securities by
Restricted Broker-Dealers, and to ensure that it conforms with
the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced
from time to time, until such time as all Restricted Broker-
Dealers determine in their judgment that they are no longer
required to deliver a Prospectus in connection with sales of
Broker-Dealer Transfer Restricted Securities. The Prospectus
included in such Registration Statement is referred to in this
Agreement as a "Market-Maker Prospectus."
SECTION 5. ADDITIONAL INTEREST
(a) If (i) any of the Registration Statements required by
this Agreement is not filed with the Commission on or prior to
the date specified for such filing in Sections 3(a), 4(a) and
4(c), as applicable, (ii) any of such required Registration
Statements has not been declared effective by the Commission on
or prior to the date specified for such effectiveness in Sections
3(a), 4(a) and 4(c), as applicable, (the "Effectiveness Target
Date"), (iii) the Exchange Offer has not been Consummated within
30 business days after the Effectiveness Target Date, or longer
if required by applicable Federal and state securities laws,
with respect to the Exchange Offer Registration Statement or (iv)
any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective
or fail to be usable for in connection with resales of Transfer
Restricted Securities without being succeeded immediately by a
post-effective amendment to such Registration Statement that
cures such failure and that is itself immediately declared
effective (except as permitted in paragraph (b); such period of
time during which any such Registration Statement is not
effective or any such Registration Statement or the related
Prospectus is not usable being referred to as a "Blackout
Period") (each such event referred to in clauses (i) through
(iv), a "Registration Default"), the Company and the Guarantors
jointly and severally agree to pay additional interest
("Additional Interest") to each Holder of Transfer Restricted
Securities adversely affected by such Registration Default with
respect to the first 90-day period immediately following the
occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof
that the Registration Default continues. The amount of
Additional Interest shall increase by an additional $.05 per week
per $1,000 in principal amount of Transfer Restricted Securities
with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of
Additional Interest of $.50 per week per $1,000 principal amount
of Transfer Restricted Securities. All accrued Additional
Interest shall be paid to Record Holders by the Company and the
Guarantors by wire transfer of immediately available funds or by
Federal funds check on each Damages Payment Date, as provided in
the Indenture. Following the cure of all Registration Defaults
relating to any particular Transfer Restricted Securities, the
accrual of Additional Interest with respect to such Transfer
Restricted Securities will cease.
(b) A Registration Default referred to in Section 5(a)(iv)
shall be deemed not to have occurred and be continuing in
relation to a Registration Statement or the related Prospectus if
(i) the Blackout Period has occurred solely as a result of (x)
the filing of a post-effective amendment to such Shelf
Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective
to permit Holders to use the related Prospectus or (y) the
occurrence of other material events with respect to the Company
that would need to be described in such Registration Statement
or the related Prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or
supplement (including by way of filing documents under the
Exchange Act which are incorporated by reference into the
Registration Statement) such Registration Statement and the
related Prospectus to describe such events; provided, however,
that in any case if such Blackout Period occurs for a continuous
period in excess of 30 days, a Registration Default shall be
deemed to have occurred on the 31st day of such Blackout Period
and Additional Interest shall be payable in accordance with the
above paragraph from the day such Registration Default occurs
until such Registration Default is cured or until the Company is
no longer required pursuant to this Agreement to keep such
Registration Statement effective or such Registration Statement
or the related Prospectus usable; provided, further, however,
that in no event shall the total of all Blackout Periods exceed
60 days in the aggregate of any 12 month period.
All payment obligations of the Company and the Guarantors
set forth in this Section that are outstanding with respect to
any Transfer Restricted Security at the time such security ceases
to be a Transfer Restricted Security shall survive until such
time as all such payment obligations with respect to such
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection
with the Exchange Offer, the Company and the Guarantors shall
comply with all of the provisions of Section 6(d) below, shall
use their best efforts to effect such exchange to permit the sale
of Transfer Restricted Securities being sold in accordance with
the intended method or methods of distribution thereof, and shall
comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the
Company and the Guarantors there is a question as to whether
the Exchange Offer is permitted by applicable law, the
Company and the Guarantors hereby agree to seek a no-action
letter or other favorable decision from the Commission
allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Notes. The Company and the
Guarantors hereby agree to pursue the issuance of such a
decision to the Commission staff level but shall not be
required to take commercially unreasonable action to effect
a change of Commission policy. The Company and the
Guarantors hereby agree however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to
the Commission staff an analysis prepared by counsel to the
Company and the Guarantors setting forth the legal bases, if
any, upon which such counsel has concluded that such an
Exchange Offer should be permitted and (C) diligently pursue
a resolution (which need not be favorable) by the Commission
staff of such submission.
(ii) As a condition to its participation in the
Exchange Offer pursuant to the terms of this Agreement, each
Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the Consummation
thereof, a written representation to the Company and the
Guarantors (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to the effect that (A) it is not an affiliate of
the Company, (B) it is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with
any Person to participate in, a distribution of the Exchange
Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of
business. In addition, all such Holders of Transfer
Restricted Securities shall otherwise cooperate in the
Company's and the Guarantors' preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under
Commission policy as in effect on the date of this Agreement
rely on the position of the Commission enunciated in Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters,
and (2) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection
with a secondary resale transaction and that such a
secondary resale transaction should be covered by an
effective Registration Statement containing the selling
security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange
Notes obtained by such Holder in exchange for Notes acquired
by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall
provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988), Xxxxxx Xxxxxxx and Co., Inc. (available June
5, 1991) and (B) including a representation that neither the
Company nor any Guarantor has entered into any arrangement
or understanding with any Person to distribute the Exchange
Notes to be received in the Exchange Offer and that, to the
best of the Company's and each Guarantor's information and
belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of
business and has no arrangement or understanding with any
Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the
Shelf Registration Statement, the Company and the Guarantors
shall comply with all the provisions of Section 6(d) below and
shall use their best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution
thereof, and pursuant thereto the Company and the Guarantors will
as expeditiously as possible prepare and file with the Commission
a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution
thereof.
(c) Market-Maker Prospectus. In connection with any
Registration Statement filed pursuant to Section 4(c) of this
Agreement, the Company and the Guarantors will comply with all of
the provisions of Section 6(d) below (other than sub-sections
(xiii), (xvi), (xviii) and (xxi)) until such time as all
Restricted Broker-Dealers determine in their judgment that they
are no longer required to deliver Market-Maker Prospectuses in
connection with sales of Broker-Dealer Transfer Restricted
Securities. The Company and the Guarantors shall use their best
efforts to deliver Market-Maker Prospectuses to all Restricted
Broker-Dealers immediately upon the effectiveness of the
Registration Statement and from time to time thereafter upon
request, in such quantities as such Restricted Broker-Dealer
shall require.
(d) General Provisions. In connection with any
Registration Statement and any Prospectus required by this
Agreement to permit the sale or resale of Transfer Restricted
Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales
of Notes and Exchange Notes by Broker-Dealers) and Broker-Dealer
Transfer Restricted Securities, the Company and the Guarantors
shall:
(i) use their best efforts to keep such Registration
Statement continuously effective and provide all requisite
financial statements (including, if required by the
Securities Act or any regulation thereunder, financial
statements of any Guarantors) for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B)
not to be effective and usable for resale of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement, in the
case of clause (A), correcting any such misstatement or
omission, and, in the case of either clause (A) or (B), use
their best efforts to cause such amendment to be declared
effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter. Notwithstanding the
foregoing, at any time after Consummation of the Exchange
Offer, the Company and the Guarantors may allow the Shelf
Registration Statement or Market-Maker Prospectus and the
related Registration Statement to cease to become effective
and usable if (x) the board of directors of the Company
determines in good faith that it is in the best interests of
the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate
transaction involving the Company or the Guarantors, and the
Company notifies the Holders within two business days after
the board of directors makes such determination, or (y) the
Prospectus contained in the Shelf Registration Statement or
the Market-Maker Prospectus, as the case may be, contains an
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they
were made, not misleading; provided that the two-year period
referred to in Section 4(a) hereof during which the Shelf
Registration Statement is required to be effective and
usable shall be extended by the number of days during which
such Registration Statement was not effective or usable
pursuant to the foregoing provisions;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration
Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable; cause the Prospectus
to be supplemented by any required Prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the
applicable provisions of Rules 424 and 430A under the
Securities Act in a timely manner; and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration
Statement during the applicable period in accordance with
the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or
supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and
selling Holders of Transfer Restricted Securities and,
following the Consummation of the Exchange Offer, Holders of
Broker-Dealer Transfer Restricted Securities, promptly and,
if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and,
with respect to any Registration Statement or any post-
effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the
Registration Statement under the Securities Act or of the
suspension by any state securities commission of the
qualification of the Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities, as applicable,
for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, and (D)
of the existence of any fact or the happening of any event
that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order that
the Registration Statement and the Prospectus do not contain
an untrue statement of a material fact or omit to state a
material fact necessary to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission
or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification
of the Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, as applicable, under state
securities or Blue Sky laws, the Company and the Guarantors
shall use their best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) if requested in writing, furnish to each of the
selling Holders of Transfer Restricted Securities or Holders
of Broker-Dealer Transfer Restricted Securities and each of
the underwriter(s), if any, before filing with the
Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements
to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial
filing of such Registration Statement), which documents will
be subject to the review of such Holders and underwriter(s),
if any, for a period of at least five business days, and the
Company and the Guarantors will not file any such
Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus
(including all such documents incorporated by reference) if
a selling Holder of Transfer Restricted Securities or a
Holder of Broker-Dealer Transfer Restricted Securities, as
applicable, covered by such Registration Statement or the
underwriter(s), if any, shall not have had an opportunity to
participate in the preparation thereof;
(v) promptly prior to the filing of any document that
is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to
the selling Holders or the Holders of Broker-Dealer Transfer
Restricted Securities, as applicable, and to the
underwriter(s), if any, make the Company's and the
Guarantors' representatives available for discussion of such
document and other customary due diligence matters, and
include such information in such document prior to the
filing thereof as such selling Holders or the Holders of
Broker-Dealer Transfer Restricted Securities, as applicable,
or underwriter(s), if any, reasonably may request;
(vi) make available for inspection at reasonable times
at the Company's principal place of business by the Holders
of Transfer Restricted Securities, any underwriter
participating in any disposition pursuant to such
Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the
underwriter(s) who shall certify to the Company and the
Guarantors that they have a current intention to sell
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities pursuant to a Shelf Registration
Statement or Market-Maker Prospectus, and, following the
Consummation of the Exchange Offer, the Holders of Broker-
Dealer Transfer Restricted Securities, such relevant
financial and other records, pertinent corporate documents
and properties of the Company and the Guarantors as
reasonably requested and cause the Company's and the
Guarantors' officers, directors and employees to respond to
such inquiries as shall be reasonably necessary, in the
reasonable judgment of counsel to such Holders, to conduct a
reasonable investigation; provided, however, that the
foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchaser by Xxxxxx
Brothers Inc. and on behalf of the selling Holders by one
counsel designated by and on behalf of such Holders as
described in Section 7 hereof and, provided further, that
each such party shall be required to maintain in confidence
and not disclose to any other Person any information or
records reasonably designated by the Company in writing as
being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its
inclusion in such Registration Statement or otherwise), or
(B) such Person shall be required so to disclose such
information pursuant to the subpoena or order of any court
or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order,
and only after such Person shall have given the Company
prompt prior written notice of such requirement), or (C)
such information is required to be set forth in such
Registration Statement or the Prospectus included therein or
in an amendment to such Registration Statement or an
amendment or supplement to such Prospectus in order that
such Registration Statement, Prospectus, amendment or
supplement, as the case may be, does not contain an untrue
statement of a material fact or omit to state therein a
material fact required to be stated therein or necessary to
make the statements made therein not misleading;
(vii) if requested by any selling Holders of
Transfer Restricted Securities or Holders of Broker-Dealer
Transfer Restricted Securities, as applicable, or the
underwriter(s), if any, promptly incorporate in any
Registration Statement or Prospectus, (including subject to
Section 4(b) hereof, the Shelf Registration Statement or
Prospectus); pursuant to a supplement or post-effective
amendment if necessary, such information as such selling
Holders and underwriter(s), if any, may reasonably request
to have included therein, including, without limitation,
information relating to the "Plan of Distribution" of the
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, information with
respect to the principal amount of Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities,
as applicable, being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of
the offering of the Transfer Restricted Securities or Broker-
Dealer Transfer Restricted Securities, as applicable, to be
sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to
be incorporated in such Prospectus supplement or post-
effective amendment; provided, however, that the Company
shall not be required to take any action pursuant to this
Section 6(d)(vii) that would, in the opinion of counsel for
the Company reasonably satisfactory to the Initial
Purchaser, violate applicable law;
(viii) furnish to each selling Holder of Transfer
Restricted Securities or Holder of Broker-Dealer Transfer
Restricted Securities, as applicable, and each of the
underwriter(s), if any, without charge, at least one copy of
the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits
(including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder of Transfer
Restricted Securities and each of the underwriter(s), if
any, and each Holder of Broker-Dealer Transfer Restricted
Securities, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request;
the Company and the Guarantors hereby consent to the use of
the Prospectus and any amendment or supplement thereto by
each of the selling Holders and each of the underwriter(s),
if any, and each Holder of Broker-Dealer Transfer Restricted
Securities, in connection with the offering and the sale of
the Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities, as applicable, covered by
the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an
underwriting agreement), and make such representations and
warranties, and take all such other actions in connection
therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities and Broker-Dealer
Transfer Restricted Securities, as applicable, pursuant to
any Registration Statement contemplated by this Agreement,
all to such extent as may be reasonably requested by the
Initial Purchaser or, in the case of registration for resale
of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, by any Holder or Holders of Transfer
Restricted Securities who hold at least 25% in aggregate
principal amount of such class of Transfer Restricted
Securities or, in the case of Broker-Dealer Transfer
Restricted Securities, by any Holder of Broker-Dealer
Transfer Restricted Securities; provided, that, the Company
and the Guarantors shall not be required to enter into any
such agreement more than once with respect to all of the
Transfer Restricted Securities and, in the case of a Shelf
Registration Statement, may delay entering into such
agreement if the Board of Directors of the Company
determines in good faith that it is in the best interests of
the Company and the Guarantors not to disclose the existence
of or facts surrounding any proposed or pending material
corporate transaction involving the Company and the
Guarantors; and whether or not an underwriting agreement is
entered into and whether or not the registration is an
Underwritten Registration, the Company and the Guarantors
shall:
(A) furnish to the Initial Purchaser, the Holders
of Transfer Restricted Securities who hold at least 25%
in aggregate principal amount of such class of Transfer
Restricted Securities (in the case of a Shelf
Registration Statement), each Holder of Broker-Dealer
Transfer Restricted Securities and each underwriter, if
any, in such substance and scope as they may request and
as are customarily made in connection with an offering of
debt securities pursuant to a Registration Statement (i)
upon the effective date of any Registration Statement
(and if such Registration Statement contemplates an
Underwritten Offering of Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities, as
applicable, upon the date of the closing under the
underwriting agreement related thereto) and (ii) upon the
filing of any amendment or supplement to any Registration
Statement or any other document that is incorporated in
any Registration Statement by reference and includes
financial data with respect to a fiscal quarter or year:
(1) a certificate, dated the date of
effectiveness of the applicable Registration Statement
signed by (y) the respective chief executive officer,
the respective President or any Vice President and (z)
the respective chief financial officer of the Company
and each of the Guarantors confirming, as of the date
thereof, the matters set forth in paragraph (o) of
Section 7 of the Purchase Agreement and such other
matters as such parties may reasonably request;
(2) an opinion, dated the date of effectiveness
of such Registration Statement, of counsel for the
Company covering the matters set forth in paragraphs
(d) and (e) of Section 7 of the Purchase Agreement and
such other matters as such parties may reasonably
request, and in any event including a statement to the
effect that such counsel has participated in
conferences with officers and other representatives of
the Company, representatives of the independent public
accountants for the Company, the Initial Purchaser's
representatives and the Initial Purchaser's counsel in
connection with the preparation of such Registration
Statement and the related Prospectus although such
counsel has not independently verified the accuracy,
completeness or fairness of such statements in such
Registration Statement; and that such counsel advises
that, on the basis of the foregoing, such counsel's
work in connection with this work, did not disclose
information that gave such counsel reason to believe
that the applicable Registration Statement, at the time
such Registration Statement or any post-effective
amendment thereto became effective, and, in the case of
the Exchange Offer Registration Statement, as of the
date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, or that the
Prospectus contained in such Registration Statement as
of its date and, in the case of the opinion dated the
date of Consummation of the Exchange Offer, as of the
date of Consummation, contained an untrue statement of
a material fact or omitted to state a material fact
necessary in order to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading. Such counsel may state further
that such counsel assumes no responsibility for, and
has not independently verified, the accuracy,
completeness or fairness of the financial statements,
notes and schedules and other financial data included
or incorporated by reference in any Registration
Statement contemplated by this Agreement or the related
Prospectus; and
(3) a customary comfort letter, dated as of the
date of Consummation of the Exchange Offer or the date
of effectiveness of the Shelf Registration Statement,
as the case may be, from the Company's independent
accountants, in the customary form and covering matters
of the type customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7 of the
Purchase Agreement;
(B) set forth in full or incorporated by reference
in the underwriting agreement, if any, the
indemnification provisions and procedures of Section 8
hereof with respect to all parties to be indemnified
pursuant to said Section; and
(C) deliver such other documents and certificates
as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any
customary conditions contained in the underwriting
agreement or other agreement entered into by the Company
and the Guarantors pursuant to this clause (x), if any.
If at any time the representations and warranties of
the Company or the Guarantors contemplated in clause (A)(1)
above cease to be true and correct, the Company or the
Guarantors shall so advise the Initial Purchaser and the
underwriters, if any, and each selling Holder promptly and,
if requested by such Persons, shall confirm such advice in
writing.
(xi) prior to any public offering of Transfer
Restricted Securities, or Broker-Dealer Transfer Restricted
Securities, as applicable, cooperate with the selling
Holders of Transfer Restricted Securities, the Holders of
Broker-Dealer Transfer Restricted Securities, the
underwriter(s), if any, and their respective counsel in
connection with the registration and qualification of the
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, under the securities
or Blue Sky laws of such jurisdictions as the selling
Holders of Transfer Restricted Securities or Holders of
Broker-Dealer Transfer Restricted Securities or
underwriter(s) may reasonably request and do any and all
other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities,
as applicable, covered by the Shelf Registration Statement
filed pursuant to Section 4 hereof; provided, however, that
the Company and the Guarantors shall not be obligated to
qualify as a foreign corporation in any jurisdiction in
which it is not now so qualified or to take any action that
would subject it to general consent to service of process,
other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not
now so subject;
(xii) shall issue, upon the request of any Holder
of Notes covered by the Shelf Registration Statement,
Exchange Notes, having an aggregate principal amount equal
to the aggregate principal amount of Notes surrendered to
the Company by such Holder in exchange therefor or being
sold by such Holder; such Exchange Notes to be registered in
the name of such Holder or in the name of the purchaser(s)
of such Exchange Notes, as the case may be; in return, the
Notes held by such Holder shall be surrendered to the
Company for cancellation;
(xiii) cooperate with the selling Holders of
Transfer Restricted Securities and the underwriter(s), if
any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such
denominations and registered in such names as the Holders or
the underwriter(s), if any, may request at least two
business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xiv) use their best efforts to cause the Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, covered by the Registration
Statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the underwriter(s),
if any, to consummate the disposition of such Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities, subject to the proviso contained in clause (xi)
above;
(xv) if any fact or event contemplated by clause
(d)(iii)(D) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, or Broker-Dealer Transfer Restricted
Securities, as applicable, the Prospectus will not contain
an untrue statement of a material fact or omit to state any
material fact necessary to make the statements made therein,
in the light of the circumstances under which they were
made, not misleading;
(xvi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of
the Registration Statement and provide the Trustee under the
Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for
deposit with the Depository Trust Company;
(xvii) cooperate and assist in any filings required
to be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any
"qualified independent underwriter") that is required to be
retained in accordance with the rules and regulations of the
NASD;
(xviii) otherwise use their best efforts to comply
with all applicable rules and regulations of the Commission,
and make generally available to its security holders, as
soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be
audited) for the twelve-month period (A) commencing at the
end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to
underwriters in such an offering, beginning with the first
month of the Company's first fiscal quarter commencing after
the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the
TIA not later than the effective date of the first
Registration Statement required by this Agreement, and, in
connection therewith, cooperate with the Trustee and the
Holders of Notes and Exchange Notes to effect such changes
to the Indenture as may be required for such Indenture to be
so qualified in accordance with the terms of the TIA; and
execute, and use their best efforts to cause the Trustee to
execute, all documents that may be required to effect such
changes and all other forms and documents required to be
filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xx) provide promptly to any Holder upon such Holder's
written request each document filed with the Commission
pursuant to the requirements of Section 13 and Section 15 of
the Exchange Act; and
(xxi) cause each Additional Guarantor upon the
creation or acquisition by Xxxxxx International or the
Company of such Additional Guarantor, to execute a
counterpart to this Agreement in the form attached hereto as
Annex A and to deliver such counterpart, together with an
opinion of counsel as to the enforceability thereof against
such entity, to the Initial Purchaser no later than five
business days following the execution thereof.
(e) Each Holder agrees by acquisition of a Transfer
Restricted Security or Broker-Dealer Transfer Restricted
Securities, as applicable, that, upon receipt of any notice from
the Company of the existence of any fact of the kind described in
Section 6(d)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated
by Section 6(d)(xv) hereof, or until it is advised in writing
(the "Advice") by the Company that the use of the Prospectus may
be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the
Prospectus. If so directed by the Company, each Holder will
deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities, as
applicable, that was current at the time of receipt of such
notice. In the event the Company shall give any such notice, the
time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable,
shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to
Section 6(d)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have
received the copies of the supplemented or amended Prospectus
contemplated by Section 6(d)(xv) hereof or shall have received
the Advice.
(f) The Company and the Guarantors may require each Holder
of Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities as to which any registration is being
effected to furnish to the Company such information regarding
such Holder and such Holder's intended method of distribution of
the applicable Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities as the Company may from time to
time reasonably request in writing, but only to the extent that
such information is required in order to comply with the
Securities Act. Each such Holder agrees to notify the Company as
promptly as practicable of (i) any inaccuracy or change in
information previously furnished by such Holder to the Company or
(ii) the occurrence of any event, in either case, as a result of
which any Prospectus relating to such registration contains or
would contain an untrue statement of a material fact regarding
such Holder or such Holder's intended method of distribution of
the applicable Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities or omits to state any material
fact regarding such Holder or such Holder's intended method of
distribution of the applicable Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities required to be
stated therein or necessary to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading and promptly to furnish to the Company any additional
information required to correct and update any previously
furnished information or required so that such Prospectus shall
not contain, with respect to such Holder or the distribution of
the applicable Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's and the
Guarantors' performance of or compliance with this Agreement will
be borne by the Company regardless of whether a Registration
Statement becomes effective, including without limitation:
(i) all Commission, securities exchange or NASD registration and
filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees
and expenses of any "qualified independent underwriter" and its
counsel that may be required by the rules and regulations of the
NASD)); (ii) all fees and expenses of compliance with Federal
securities and state Blue Sky or securities laws and compliance
with the rules of the NASD (including reasonable fees and
disbursements of one counsel for Holders in connection with Blue
Sky and/or NASD qualification of the Exchange Notes); (iii) all
expenses of printing (including printing certificates for the
Exchange Notes to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services; (iv) all fees and
disbursements of counsel for the Company and the Guarantors; (v)
all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special
audit and comfort letters required by or incident to such
performance); and (vi) the reasonable fees and disbursements of
one firm of counsel designated by the Holders of a majority in
principal amount of Transfer Restricted Securities covered by the
Registration Statement to act as counsel for the Holders of those
Transfer Restricted Securities in connection therewith.
The Company will, in any event, bear its and the Guarantors'
internal expenses (including, without limitation, all salaries
and expenses of its officers and employees performing legal or
accounting duties), the expenses of any annual audit and the fees
and expenses of any Person, including special experts, retained
by the Company or the Guarantors.
(b) Each Holder of Transfer Restricted Securities or Broker-
Dealer Transfer Restricted Securities, as applicable, will pay
all underwriting discounts, if any, and commissions and transfer
taxes, if any, relating to the disposition of such Holder's
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors shall, jointly and
severally, indemnify and hold harmless each Holder of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted
Securities, its officers and employees and each Person, if any,
who controls any such Holders, within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage,
liability or action relating to purchases, sales and registration
of Notes and Exchange Notes), to which that Holder, officer,
employee or controlling Person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact
contained (A) in any Registration Statement or preliminary
Prospectus or Prospectus or in any amendment or supplement
thereto or (B) in any blue sky application or other document
prepared or executed by the Company or any Guarantor (or based
upon any written information furnished by the Company or any
Guarantor) specifically for the purpose of qualifying any or all
of the Notes under the securities laws of any state or other
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"); or (ii) the
omission or alleged omission to state in any Registration
Statement or Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading; and shall reimburse each Holder and each
such officer, employee or controlling Person promptly upon demand
for any legal or other expenses reasonably incurred by that
Holder, officer, employee or controlling Person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company and
the Guarantors shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out
of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any
Registration Statement or Prospectus, or in any such amendment or
supplement, or in any Blue Sky Application, in reliance upon and
in conformity with written information concerning such Holder
furnished to the Company by or on behalf of any Holder
specifically for inclusion therein; provided, further that with
respect to any such untrue statement or omission made in any
preliminary Prospectus, the indemnity agreement contained in this
Section 8(a) shall not enure to the benefit of the Holder from
whom the Person asserting any such losses, claims, damages or
liabilities purchased the Notes or Exchange Notes concerned if,
to the extent that such sale was a sale by the Holder and any
such loss, claim, damage or liability of such Holder is a result
of the fact that both (A) a copy of the Prospectus (or the
Prospectus as then amended or supplemented) was not sent or given
to such Person at or prior to written confirmation of the sale of
such Notes or Exchange Notes to such Person and (B) the untrue
statement or omission in the preliminary Prospectus was corrected
in the Prospectus (or the Prospectus as then amended or
supplemented) unless such failure to deliver the Prospectus was a
result of noncompliance by the Company with Section 6(d)(ix)
hereof. The foregoing indemnity agreement is in addition to any
liability which the Company and the Guarantors may otherwise have
to any Holder or to any officer, employee or controlling Person
of that Holder.
(b) Each Holder, severally and not jointly, shall indemnify
and hold harmless the Company, each of the Guarantors, their
respective directors, officers and employees, and each Person, if
any, who controls the Company or any of the Guarantors within the
meaning of the Securities Act, from and against any loss, claim,
damage or liability, joint or several, or any action in respect
thereof, to which the Company, the Guarantors or any such
director, officer or controlling Person may become subject, under
the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i)
any untrue statement or alleged untrue statement of a material
fact contained (A) in any Registration Statement, preliminary
Prospectus or Prospectus, or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission
or alleged omission to state in any Registration Statement,
preliminary Prospectus or Prospectus, or in any amendment or
supplement thereto, or in any Blue Sky Application any material
fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Holders
furnished to the Company by or on behalf of that Holder
specifically for inclusion therein, and shall reimburse the
Company, each of the Guarantors and each such director, officer,
employee and controlling Person for any legal or other expenses
reasonably incurred by the Company, such Guarantor or each such
director, officer, employee or controlling Person in connection
with investigating or defending or preparing to defend against
any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to
the Company, any of the Guarantors or any such director, officer,
employee or controlling Person.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the indemnifying party shall not relieve it
from any liability which it may have under this Section 8 except
to the extent it has been materially prejudiced by such failure
and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which
it may have to an indemnified party otherwise than under this
Section 8. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense
thereof with counsel reasonably satisfactory to the indemnified
party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such
claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other
expenses subsequently incurred by the indemnified party in
connection with the defense thereof other than reasonable costs
of investigation; provided, however, any indemnified party shall
have the right to employ separate counsel in any such action and
to participate in the defense thereof but the fees and expenses
of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel has been specifically
authorized by the indemnifying party in writing, or (ii) such
indemnified party shall have been advised by such 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 party and in the reasonable judgment of such counsel
it is advisable for such indemnified party to employ separate
counsel or (iii) the indemnifying party has failed to assume the
defense of such action and employ counsel reasonably satisfactory
to the indemnified party, in which case, if such indemnified
party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not, 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
allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in
addition to one local counsel) at any time for all such
indemnified parties, which firm shall be designated in writing by
(i) Xxxxxx Brothers Inc. if the indemnified parties under this
Section 8 consist of either Initial Purchaser or any of their
respective officers, employees or controlling Persons, or (ii) by
the Company, if the indemnified parties under this Section 8
consist of the Company, any of the Guarantors or any of their
respective directors, officers, employees or controlling Persons.
No indemnifying party shall (i) without the prior written consent
of the indemnified parties (which consent shall not be
unreasonably withheld), 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, or (ii) be liable for any settlement of any such
action effected without its written consent (which consent shall
not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to
indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or
judgment.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold
harmless an indemnified party under Section 8(a) or 8(b) in
respect of any loss, claim, damage or liability, or any action in
respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified
party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Holders on
the other, from the sale of the Transfer Restricted Securities or
Broker-Dealer Transfer Restricted Securities, as applicable, or
(ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the
Guarantors, on the one hand and the Holders on the other with
respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof,
as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to
information supplied by the Company or any of the Guarantors, on
the one hand, or the Holders, on the other hand, the intent of
the parties and their relative knowledge, access to information
and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors and the Holders agree that it would
not be just and equitable if contributions pursuant to this
Section 8(d) were to be determined by pro rata allocation (even
if the Holders were treated as one entity for such purpose) or by
any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid
or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof,
referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Holder
shall be required to contribute any amount in excess of the
amount by which the net proceeds received by it in connection
with its sale of Notes exceeds the amount of any damages which
such Holder has otherwise paid or become liable to pay by reason
of the 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. The Holders' obligations to
contribute as provided in this Section 8(d) are several and not
joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each
Holder of Transfer Restricted Securities, during any period in
which the Company or such Guarantor is not subject to Section 13
or 15(d) of the Exchange Act within the two-year period following
the Closing Date, and each Holder of Broker-Dealer Transfer
Restricted Securities, for so long as any Broker-Dealer Transfer
Restricted Securities remain outstanding, to make available to
any Holder or beneficial owner of Transfer Restricted Securities
or any Holder of Broker-Dealer Transfer Restricted Securities, in
connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities from such Holder or beneficial owner, the
information required by Rule 144A(d)(4) under the Securities Act
in order to permit resales of such Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities pursuant to Rule
144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, on the basis provided in
any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and
executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such underwriting
arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such
Transfer Restricted Securities in an Underwritten Offering at
such Holders' expense. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders
of a majority in aggregate principal amount of the Transfer
Restricted Securities included in such offering; provided, that
such investment bankers and managers must be reasonably
satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors agree that
monetary damages (including Additional Interest ) would not be
adequate compensation for any loss incurred by reason of a breach
by it of the provisions of this Agreement and hereby agree to
waive the defense in any action for specific performance that a
remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither the Company nor
any Guarantor will, on or after the date of this Agreement, enter
into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this
Agreement or otherwise conflicts with the provisions hereof.
Except as disclosed in the Final Offering Memorandum, neither the
Company nor any Guarantor has previously entered into any
agreement granting any registration rights with respect to its
securities to any Person. 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
Company's or any Guarantor's securities under any agreement in
effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the
Guarantors will not take any action, or permit any change to
occur, with respect to the Notes that would materially and
adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented, and
waivers or consents to or departures from the provisions hereof
may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding principal
amount of the Transfer Restricted Securities affected by such
amendment, modification, supplement, waiver or consent.
Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights
of Holders whose securities are being tendered pursuant to the
Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being
tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-
delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Company or the Guarantors:
Xxxxxx, Inc.
0000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx, III
(Fax: 000-000-0000)
and Xxxx X. Panettiere
(Fax: 000-000-0000)
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxxxx
(Fax: 000-000-0000)
Any such notices and communications shall take effect at the
time of receipt thereof. The Company shall be entitled to act
and rely upon any notice or communication given or made by the
Initial Purchaser.
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 specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of
each of the parties, including without limitation and without the
need for an express assignment, subsequent Holders or Restricted
Broker-Dealers; provided, however, that this Agreement shall not
inure to the benefit of or be binding upon a successor or assign
of a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any
circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the
other Operative Documents (as defined in the Purchase Agreement)
is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement
of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than
those set forth or referred to herein with respect to the
registration rights granted by the Company and the Guarantors
with respect to the Transfer Restricted Securities. This
Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
Very truly yours,
XXXXXX, INC.
By:________________________________
Name:
Title:
XXXXXX INTERNATIONAL, INC.
By:________________________________
Name:
Title:
BI HOLDINGS CORP.
By:________________________________
Name:
Title:
XXXXXXXX X. XXXX COMPANY
By:________________________________
Name:
Title:
BI, L.L.C.
By: Xxxxxx, Inc. as Member
of BI, L.L.C.
By:___________________________
Name:
Title:
By: BI Holdings Corp. as
Member of BI, L.L.C.
By:___________________________
Name:
Title:
XXXXXX DEVELOPMENT CORP.
By:________________________________
Name:
Title:
OMARK PROPERTIES, INC.
By:________________________________
Name:
Title:
4520 CORP., INC.
By:________________________________
Name:
Title:
GEAR PRODUCTS, INC.
By:________________________________
Name:
Title:
XXXXX INDUSTRIES, INC.
By:________________________________
Name:
Title:
XXXXXXXXX MANUFACTURING CORPORATION
By:________________________________
Name:
Title:
FEDERAL CARTRIDGE COMPANY
By:________________________________
Name:
Title:
XXXXXXX OUTDOOR CORPORATION
By:________________________________
Name:
Title:
MOCENPLAZA DEVELOPMENT CORP.
By:________________________________
Name:
Title:
CTR MANUFACTURING, INC.
By:________________________________
Name:
Title:
Accepted:
Xxxxxx Brothers Inc.
By:________________________________
Name:
Title:
Annex A
Counterpart To Registration Rights Agreement
The undersigned hereby absolutely, unconditionally and
irrevocably agrees (as a "Guarantor") to use its best efforts to
include its Guarantee in any Registration Statement required to
be filed by the Company and the Guarantors pursuant to the
Registration Rights Agreement, dated as of August 19, 1999 (the
"Registration Rights Agreement") by and among Xxxxxx, Inc., a
Delaware corporation, the guarantors named therein and Xxxxxx
Brothers Inc.; to use its best efforts to cause such Registration
Statement to become effective as specified in the Registration
Rights Agreement; and to otherwise be bound by the terms and
provisions of the Registration Rights Agreement.
IN WITNESS WHEREOF, the undersigned has executed this
Counterpart as of _________, [_____].
[NAME]
By:________________________________
Name:
Title:
