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EXHIBIT 10.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of January 22, 1997
by and among
LDM TECHNOLOGIES, INC.,
LDM HOLDINGS, LLC,
LDM CANADA LIMITED PARTNERSHIP,
LDM TECHNOLOGIES COMPANY
and
XXXXX XXXXXX INC.
(as Initial Purchaser)
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$110,000,000
10 3/4% SENIOR SUBORDINATED NOTES DUE 2007
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This Registration Rights Agreement is dated as of January 22, 1997, by
and among LDM TECHNOLOGIES, INC., a Michigan corporation (the "Company" and,
together with the Guarantors who are, or hereafter become, a party hereto, the
"Issuers"), and Xxxxx Xxxxxx Inc. (the "Initial Purchaser").
This Agreement is made pursuant to the Purchase Agreement, dated
January 16, 1997, among the Company, the Guarantors listed on the signature
pages hereto and the Initial Purchaser (the "Purchase Agreement"). In order to
induce the Initial Purchaser to enter into the Purchase Agreement, the Company
and the Guarantors have agreed to provide the registration rights provided for
in this Agreement to the Initial Purchaser and its direct and indirect
transferees and assigns. The execution and delivery of this Agreement is a
condition to the closing of the transactions contemplated by the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: As defined in Section 4(a) hereof.
Affiliate: With respect to any specified person, "Affiliate" shall
mean any other person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified person, For the
purposes of this definition, "control," when used with respect to any person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise and the terms "affiliated," "controlling" and "controlled" have
meanings correlative to the foregoing.
Agreement: This Registration Rights Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
Business Day: Any day except a Saturday, a Sunday or a day on which
banking institutions in New York, New York generally are required or authorized
by law or other government action to be closed.
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Company: As defined in the preamble hereof.
Consummate or consummate: When used to qualify the term "Exchange
Offer", shall mean validly and lawfully to issue and deliver the Exchange Notes
pursuant to the Exchange Offer for all Notes validly tendered and not validly
withdrawn pursuant thereto in accordance with the terms of this Agreement.
Consummation Date: The date that is 20 Business Days immediately
following the date that the Exchange Registration Statement shall have been
declared effective by the SEC.
Effectiveness Period: As defined in Section 3(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated by the SEC pursuant thereto.
Exchange Date: As defined in Section 2(d) hereof.
Exchange Notes: The 10 3/4% Senior Subordinated Notes due 2007 of the
Company that are identical to the Notes in all material respects, except that
the provisions regarding restrictions on transfer shall be modified, as provided
in the Indenture (or the indenture pursuant to which the Exchange Notes are
issued), and the issuance thereof pursuant to the Exchange Offer shall have been
registered pursuant to an effective Registration Statement in compliance with
the Securities Act.
Exchange Offer: An offer to issue, in exchange for any and all of the
Notes validly tendered, a like aggregate principal amount of Exchange Notes,
which offer shall be made by the Company pursuant to Section 2 hereof.
Exchange Registration Statement: As defined in Section 2(a) hereof.
Guarantor: Each Person identified as a Guarantor on the signature
pages of this Agreement and each other Person which guarantees the Notes or the
Exchange Notes in accordance with the terms of the Indenture.
Indemnified Holder: As defined in Section 7(a) hereof.
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Indemnified Person: As defined in Section 7(a) hereof.
Indenture: The Indenture, dated as of January 15, 1997, among the
Company, the Guarantors and IBJ Xxxxxxxx Bank & Trust Company, as trustee
thereunder, pursuant to which the Notes are issued, as amended or supplemented
from time to time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereof
Issue Date: As defined in Section 2(a).
Issuer Indemnified Persons: As defined in Section 7(c) hereof.
Issuers: As defined in the preamble hereof.
Notes: The 10 3/4% Senior Subordinated Notes due 2007 of the Company
issued pursuant to the Indenture.
Participating Broker-Dealer: As defined in Section 2(e) hereof.
Private Exchange: As defined in Section 2(c) hereof.
Private Exchange Notes: As defined in Section 2(c) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Notes, Exchange Notes or Private
Exchange Notes covered by such Registration Statement, and all other amendments
and supplements to any such prospectus, including post-effective amendments, and
all material incorporated by reference or deemed to be incorporated by
reference, if any, in such prospectus.
Registration Default: As defined in Section 4(a) hereof.
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Registration Statement: Any registration statement of the Issuers that
covers any of the Notes, Exchange Notes or Private Exchange Notes pursuant to
the provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement or Prospectus, including pre- and
post-effective amendments, all exhibits thereto, and all material incorporated
by reference or deemed to be incorporated by reference, if any, in such
registration statement.
Requesting Participating Broker-Dealer: As defined in Section 2(e)
hereof.
Rule 144(k): Rule 144(k) promulgated by the SEC pursuant to the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 158: Rule 158 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 174: Rule 174 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 415: Rule 415 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
Rule 424: Rule 424 promulgated by the SEC pursuant to the Securities
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC as a replacement thereto having
substantially the same effect as such Rule.
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SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations promulgated by the SEC thereunder.
Shelf Blackout Period: As defined in Section 3(a) hereof.
Shelf Filing Event: As defined in Section 3(a) hereof.
Shelf Registration: As defined in Section 3(a) hereof.
Shelf Registration Statement: As defined in Section 3(a) hereof.
Special Counsel: Xxxxxx Xxxxxx & Xxxxxxx, special counsel to the
holders of Transfer Restricted Notes, or such other counsel as shall be agreed
upon by the Issuers and holders of a majority in aggregate principal amount of
Transfer Restricted Notes, the reasonable expenses of which holders of Transfer
Restricted Notes will be reimbursed by the Issuers pursuant to Section 6 hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Transfer Restricted Note: Each Note, upon original issuance thereof,
and at all times subsequent thereto, each Exchange Note as to which Section
3(a)(ii) 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 in the case of any such Note, Exchange Note or
Private Exchange Note, as the case may be, the earliest to occur of (i) the date
on which any such Note has been exchanged by a person other than a Participating
Broker-Dealer for an Exchange Note (other than with respect to an Exchange Note
as to which Section 3(a)(ii) hereof applies) pursuant to the Exchange Offer,
(ii) with respect to Exchange Notes received by Participating Broker-Dealers in
the Exchange Offer, the earlier of (x) the date on which such Exchange Note has
been sold by such Participating Broker-Dealer by means of the Prospectus
contained in the Exchange Registration Statement and (y) the date on which the
Exchange Registration Statement has been effective under the Securities Act for
a period of six months after the Consummation Date, (iii) a Shelf Registration
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Statement covering such Note, Exchange Note or Private Exchange Note has been
declared effective by the SEC and such Note, Exchange Note or Private Exchange
Note, as the case may be, has been disposed of in accordance with such
effective Shelf Registration Statement, (iv) the date on which such Note,
Exchange Note or Private Exchange Note, as the case may be, is eligible for
distribution to the public without volume or manner of sale restrictions
pursuant to Rule 144(k) or (v) the date on which such Note, Exchange Note or
Private Exchange Note, as the case may be, ceases to be outstanding for
purposes of the Indenture or any other indenture under which such Exchange Note
or Private Exchange Note was issued.
Trustee: The trustee under the Indenture.
underwritten registration or underwritten offering: A registration in
connection with which securities are sold to an underwriter for reoffering to
the public pursuant to an effective Registration Statement.
2. Exchange Offer
(a) To the extent not prohibited by any applicable law or
applicable interpretation of the staff of the SEC, the Issuers shall (A) prepare
and, on or prior to 30 days after the date of original issuance of the Notes
(the "Issue Date"), file with the SEC a Registration Statement under the
Securities Act with respect to an offer by the Company to the holders of the
Notes to issue and deliver to such holders, in exchange for Notes, a like
principal amount of Exchange Notes, (B) use their best efforts to cause the
Registration Statement relating to the Exchange Offer to be declared effective
by the SEC under the Securities Act on or prior to 90 days after the Issue Date,
and (C) promptly following the declaration of the effectiveness of the Exchange
Registration Statement, commence the Exchange Offer and use their best efforts
to issue, on or prior to the Consummation Date, the Exchange Notes. The offer
and sale of the Exchange Notes pursuant to the Exchange Offer shall be
registered pursuant to the Securities Act on an appropriate form (the "Exchange
Registration Statement") and duly registered or qualified under all applicable
state securities or Blue Sky laws and will comply with all applicable tender
offer rules and regulations under the Exchange Act and state securities or Blue
Sky laws. The Exchange Offer shall not be subject to any condition, other than
that the Exchange Offer does not violate any applicable law or interpretation of
the staff of the SEC. No
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securities shall be included in the Exchange Registration Statement other than
the Exchange Notes.
(b) The Issuers may require each holder of Notes, as a condition to
its participation in the Exchange Offer, to represent to the Issuers and their
counsel in writing (which may be contained in the applicable letter of
transmittal) that at the time of the consummation of the Exchange Offer (i) any
Exchange Notes received by such holder will be acquired in the ordinary course
of its business, (ii) such holder will have no arrangement or understanding with
any person to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Notes and (iii) such holder is not an Affiliate
of an Issuer, or if it is an Affiliate of an Issuer, it will comply with the
registration and prospectus delivery requirements of the Securities Act, to the
extent applicable.
(c) If, prior to consummation of the Exchange Offer, the Initial
Purchaser holds any Notes acquired by it and having, or which are reasonably
likely to be determined to have, based on the written advice of Special Counsel,
the status of an unsold allotment in the initial distribution, or any other
holder of Notes is not entitled, as a matter of law or based on an
interpretation or position of the staff of the SEC, to participate in the
Exchange Offer, the Issuers, upon the request of the Initial Purchaser or any
such holder, shall, simultaneously with the delivery of the Exchange Notes in
the Exchange Offer, issue and deliver to the Initial Purchaser and any such
holder, in exchange (the "Private Exchange") for such Notes held by the Initial
Purchaser and any such holder, a like principal amount of debt securities of
the Issuers that are identical in all material respects to the Exchange Notes
(the "Private Exchange Notes") (and which are issued pursuant to the same
indenture as the Exchange Notes). The Private Exchange Notes shall bear the
same CUSIP number as the Exchange Notes.
(d) Unless the Exchange Offer would not be permitted by any applicable
law or interpretation thereof of the staff of the SEC, the Company shall mail
the Exchange Offer Prospectus and appropriate accompanying documents, including
appropriate letters of transmittal, to each holder of Notes providing, in
addition to such other disclosures as are required by applicable law:
(i) that the Exchange Offer is being made pursuant to this Agreement
and that all Notes validly tendered will be accepted for exchange;
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(ii) the date of acceptance for exchange (the "Exchange Date"), which
date shall in no event be later than the Consummation Date (unless
otherwise required by applicable law);
(iii) that a holder of a Note electing to have a Note exchanged
pursuant to the Exchange Offer will be required to surrender such Note,
together with the enclosed letters of transmittal, to the institution and
at the address (located in the Borough of Manhattan, The City of New York)
specified in the notice prior to the close of business on the Exchange
Date; and
(iv) that holders of Notes that do not validly tender all such
securities pursuant to the Exchange Offer may no longer have any
registration rights hereunder with respect to Notes not validly tendered.
Promptly after the Exchange Date, the Company shall:
(i) accept for exchange all Notes or portions thereof validly tendered
and not validly withdrawn pursuant to the Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Notes or portions thereof so accepted for exchange by the
Company, and issue, cause the Trustee under the Indenture (or the indenture
pursuant to which the Exchange Notes are issued) to authenticate, and mail
to each holder of Notes, Exchange Notes equal in principal amount to the
principal amount of the Notes surrendered by such holder.
(e) The Company and the Initial Purchaser acknowledge that the staff
of the SEC has taken the position that any broker-dealer that elects to exchange
Notes that were acquired by such broker-dealer for its own account as a result
of market-making or other trading activities for Exchange Notes in the Exchange
Offer (a "Participating Broker-Dealer") may be deemed to be an "underwriter"
within the meaning of the Securities Act and must deliver a prospectus meeting
the requirements of the Securities Act in connection with any resale of such
Exchange Notes (other than a resale of an unsold allotment resulting from the
original offering of the Notes).
The Company and the Initial Purchaser also acknowledge that it is
the SEC staff's position that if the Prospectus
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contained in the Exchange Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "Requesting Participating Broker-Dealer"), the Issuers agree
(x) to use their best efforts to keep the Exchange Registration Statement
continuously effective for a period of up to six months after the Consummation
Date or such earlier date as each Requesting Participating Broker-Dealer shall
have notified the Company in writing that such Requesting Participating
Broker-Dealer has resold all Exchange Notes acquired in the Exchange Offer and
(y) to comply with the provisions of Section 5 of this Agreement, as they relate
to the Exchange Offer and the Exchange Registration Statement.
(f) The Initial Purchaser shall have no liability to any Requesting
Participating Broker-Dealer with respect to any request made pursuant to Section
2(e).
(g) Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
(h) The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture identical in all material
respects to the Indenture, which in either event shall provide that the Exchange
Notes shall not be subject to the transfer restrictions set forth in the Inden-
ture. 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 neither the Exchange Notes, the Private Exchange
Notes nor the Notes will have the right to vote or consent as a separate class
on any matter.
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3. Shelf Registration
(a) If (i) the Issuers are not permitted to file the Exchange Offer
Registration Statement or to consummate the Exchange Offer because the Exchange
Offer is not permitted by any applicable law or applicable interpretation
thereof by the staff of the SEC or (ii) any holder of a Note notifies the Com-
pany on or prior to the Consummation Date that (A) due to a change in law or
applicable interpretation thereof by the Staff of the SEC it is not entitled to
participate in the Exchange Offer, (B) due to a change in law or applicable
interpretation thereof by the Staff of the SEC it may not resell Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Registration Statement
is not appropriate or available for such resales by such holder or (C) it owns
Notes (including the Initial Purchaser with respect to Notes that may be deemed
to be a part of an unsold allotment from the original offering of the Notes)
acquired directly from an Issuer or an Affiliate of an Issuer or (iii) any
holder of Private Exchange Notes so requests after the consummation of the
Private Exchange or (iv) the Company has not consummated the Exchange Offer by
the Consummation Date and holders of a majority in principal amount of Notes
outstanding so request (each such event referred to in clauses (i) through (iv),
a "Shelf Filing Event"), the Issuers shall cause to be filed with the SEC
pursuant to Rule 415 a shelf registration statement (the "Shelf Registration
Statement") prior to the later of (x) 60 days after the Issue Date or (y) 30
days after the occurrence of such Shelf Filing Event, relating to all Transfer
Restricted Notes (the "Shelf Registration") the holders of which have provided
the information required pursuant to Section 3(b) hereof, and shall use their
best efforts to have the Shelf Registration Statement declared effective by the
SEC on or prior to 90 days after such Shelf Filing Event. In such
circumstances, the Issuers shall use their best efforts to keep the Shelf
Registration Statement continuously effective under the Securities Act, until
(A) 36 months following the Issue Date or (B) if sooner, the date immediately
following the date that all Transfer Restricted Notes covered by the Shelf
Registration Statement have been sold pursuant thereto or otherwise cease to be
Transfer Restricted Notes (the "Effectiveness Period"); provided that the
Effectiveness Period shall be extended to the extent required to permit dealers
to comply with the applicable prospectus delivery requirements of Rule 174;
provided, further, that the Issuers may suspend the effectiveness of a Shelf
Registration Statement, in the event that, and for a period not to
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exceed 45 days in any calendar year (a "Shelf Blackout Period") if, (i) an event
occurs and is continuing as a result of which the Shelf Registration Statement
would, in the Company's good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein not misleading and (ii) if the Company determines in good
faith that the disclosure of such event at such time would have a material
adverse effect on the business, operations or prospects of the Company or the
disclosure otherwise relates to a pending material business transaction which
has not yet been publicly disclosed.
(b) No holder of Transfer Restricted Notes may include any of its
Transfer Restricted Notes in any Shelf Registration Statement pursuant to
Section 3(a) of this Agreement unless and until such holder furnishes to the
Company in writing, within 7 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 Notes shall be entitled to Additional
Interest pursuant to Section 4 hereof unless and until such holder shall have
provided all such reasonably requested information within the time periods set
forth herein. Each holder of Transfer Restricted Notes 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.
4. Additional Interest
(a) The parties hereto agree that the holders of Transfer Restricted
Notes will suffer damages if the Issuers fail to fulfill their obligations
pursuant to Section 2 or Section 3, as applicable, and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event
that (i) the applicable Registration Statement is not filed with the SEC on or
prior to the date specified herein for such filing, (ii) the applicable
Registration Statement has not been declared effective by the SEC on or prior to
the date specified herein for such effectiveness after such obligation arises,
(iii) if the Exchange Offer is required to be Consummated hereunder, the
Company has not exchanged Exchange Notes for all Notes validly tendered and not
validly withdrawn in accordance with the terms of the Exchange Offer by the
Consummation Date or (iv) except during a Shelf Blackout Period, the
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applicable Registration Statement is filed and declared effective but shall
thereafter cease to be effective or usable in connection with the Exchange Offer
or resales of Transfer Restricted Notes during a period in which it is required
to be effective hereunder without being succeeded immediately by any additional
Registration Statement covering the Notes, the Exchange Notes or the Private
Exchange Notes, as the case may be, which has been filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), then the interest rate on Transfer Restricted Notes will increase
("Additional Interest"), with respect to the first 90-day period immediately
following the occurrence of such Registration Default, by 0.5% per annum and
will increase by an additional 0.5% per annum with respect to each subsequent
90-day period until such Registration Default has been cured, up to a maximum
amount of 2.0% per annum with respect to all Registration Defaults. Following
the cure of a Registration Default, the accrual of Additional Interest with
respect to such Registration Default will cease and upon the cure of all
Registration Defaults the interest rate will revert to the original rate.
(b) The Company shall notify the Trustee and paying agent under the
Indenture (or the trustee and paying agent under such other indenture under
which any Transfer Restricted Notes are issued) immediately upon the happening
of each and every Registration Default. The Company shall pay the Additional
Interest due on the Transfer Restricted Notes by depositing with the paying
agent (which shall not be the Company for these purposes) for the Transfer
Restricted Notes, in trust, for the benefit of the holders thereof, prior to
11:00 A.M. on the next interest payment date specified by the Indenture (or such
other indenture), sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date
specified by the Indenture (or such other indenture) to the record holders
entitled to receive the interest payment to be made on such date. Each
obligation to pay Additional Interest shall be deemed to accrue from and
including the applicable Registration Default.
(c) The parties hereto agree that the Additional Interest provided for
in this Section 4 constitutes a reasonable estimate of the damages that will
be suffered by holders of Transfer Restricted Notes by reason of the happening
of any Registration Default.
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5. Registration Procedures
In connection with the Issuers' registration obligations hereunder,
the Issuers shall effect such registrations on the appropriate form available
for the sale of the Notes, the Exchange Notes or Private Exchange Notes, as
applicable, to (i) in the case of the Exchange Offer, permit the exchange of
Exchange Notes for Notes in the Exchange Offer and, if applicable, resales of
Exchange Notes by Participating Broker-Dealers and (ii) in the case of a Shelf
Registration, permit the sale of the applicable Transfer Restricted Notes in
accordance with the method or methods of disposition thereof specified by the
holders of such Transfer Restricted Notes, and pursuant thereto the Issuers
shall as expeditiously as reasonably possible:
(a) Furnish to the Initial Purchaser (in the case of any Registration
Statement) and the holders of the Transferred Restricted Notes included
therein (in the case of a Shelf Registration Statement) prior to the filing
thereof with the SEC, a copy of the Registration Statement and each
amendment thereto and each supplement, if any, to the Prospectus included
therein and, in the event that the Initial Purchaser (with respect to any
portion of an unsold allotment from the original offering) is partici-
pating in the Exchange Offer or the Shelf Registration, shall use
reasonable efforts to reflect in each such document, when so filed with
the SEC, such comments as the Initial Purchaser or its Special Counsel
reasonably may propose;
(b) Prepare and file with the SEC such amendments, including
post-effective amendments, to each Registration Statement as may be
necessary to keep such Registration Statement continuously effective for
the applicable time period required hereunder; cause the related Prospectus
to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement
during such period in accordance with the intended methods of disposition
by the sellers thereof set forth in such Registration Statement as so
amended or in such Prospectus as so supplemented;
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(c) Notify the holders of Transfer Restricted Notes to be sold or, in
the case of an Exchange Offer, tendered for, their Special Counsel and the
managing underwriters, if any, promptly, and (if requested by any such
person), confirm such notice in writing, (i)(A) when a Prospectus or any
Prospectus supplement or post-effective amendment is proposed to be filed,
and (B) with respect to a Registration Statement or any post-effective
amendment, when the same has become effective, (ii) of any request by the
SEC or any other Federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for
additional information, (iii) of the issuance by the SEC, any state
securities commission, any other governmental agency or any court of any
stop order or injunction suspending or enjoining the use of a Prospectus or
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification or
exemption from qualification of any of the Notes, Exchange Notes or Private
Exchange Notes for sale in any jurisdiction, or the initiation or, to the
actual knowledge of any Issuer, threatening of any proceeding for such
purpose, and (v) of the happening of any event or information becoming
known to any Issuer that makes any statement made in a 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 such Registration Statement,
Prospectus or documents so that 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 a Prospectus, it will not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) Use their best efforts to avoid the issuance of or, if issued,
obtain the withdrawal of any order enjoining or suspending the use of a
Prospectus or the effectiveness of a Registration Statement or the
lifting of any suspension of the qualification (or exemption from quali-
fication) of any of the Notes, Exchange Notes or Private
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Exchange Notes for sale in any jurisdiction, at the earliest practicable
moment;
(e) If a Shelf Registration Statement is filed pursuant to Section 3
hereof and if requested by the managing underwriters, if any, or the
holders of a majority in aggregate principal amount of the Transfer
Restricted Notes being sold pursuant to such Shelf Registration Statement,
(i) promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters, if any, and such
holders reasonably believe should be included therein based on written
advice of counsel to such managing underwriter, if any, and/or Special
Counsel, and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment under the Securities Act as soon as
practicable after the Company has received notification of the matters to
be incorporated in such Prospectus supplement or post-effective amendment;
provided, however, that the Issuers shall not be required to take any
action pursuant to this Section 5(e) that would, in the opinion of counsel
for the Issuers, violate applicable law;
(f) Upon written request to the Company by a holder of Notes, Exchange
Notes or Private Exchange Notes to be exchanged or sold pursuant to a
Registration Statement, their Special Counsel and each managing
underwriter, if any, without charge, furnish at least one conformed copy of
such Registration Statement and each amendment thereto, including financial
statements and schedules, all documents incorporated or deemed to be
incorporated therein by reference, and all exhibits to the extent requested
(including those previously furnished or incorporated by reference) as soon
as reasonably practicable after the filing of such documents with the SEC;
(g) Deliver to each holder of Notes, Exchange Notes or Private
Exchange Notes to be exchanged or sold pursuant to a Registration
Statement, their Special Counsel, and the underwriters, if any, without
charge, as many copies of the Prospectus (including each form of
prospectus) and each amendment or supplement thereto as such persons rea-
sonably request; and the Issuers hereby consent to the use of such
Prospectus and each amendment or supplement thereto by each of the selling
holders of Transfer Restricted Notes and the underwriters, if any, in
connetion with the offering and sale of the Transfer Restricted
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Notes covered thereby in accordance with the terms thereof and with U.S.
Federal securities laws and Blue Sky laws covered by such Prospectus and
any amendment or supplement thereto;
(h) Prior to any public offering of Notes, Exchange Notes or Private
Exchange Notes, use their best efforts to register or qualify or cooperate
with the holders of Notes, Exchange Notes or Private Exchange Notes to be
sold or tendered for, the underwriters, if any, and their respective
counsel in connection with the registration or qualification (or exemption
from such registration or qualification) of such Notes, Exchange Notes or
Private Exchange Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any such holder or
underwriter reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective hereunder and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Notes, Exchange Notes or Private
Exchange Notes covered by the applicable Registration Statement; provided,
however, that the Issuers shall not be required to (i) qualify generally to
do business in any jurisdiction where they are not then so qualified or
(ii) take any action which would subject them to general service of process
or to taxation in any jurisdiction where they are not so subject;
(i) In connection with any sale or transfer of Transfer Restricted
Notes that will result in such securities no longer being
Transfer Restricted Notes, cooperate with the holders thereof and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted 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 to enable
such Transfer Restricted Notes to be in such denominations and registered
in such names as the managing underwriters, if any, or such holders may
request at least two Business Days prior to any sale of Transfer Restricted
Notes;
(j) Upon the occurrence of any event contemplated by Section 5(c)(v),
as promptly as practicable, prepare a supplement or amendment, including,
if appropriate, a
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post-effective amendment, to each Registration Statement or a supplement to
the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, and file any other required document
so that, as thereafter delivered, such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
(k) Prior to the effective date of the Exchange Registration
Statement, to provide a CUSIP number for the Exchange Notes (and, as
promptly as practicable, the Private Exchange Notes, if applicable);
(1) In connection with a Shelf Registration Statement filed pursuant
to Section 3 hereof, use their best efforts to enter into such agreements
(including an underwriting agreement in form, scope and substance as is
customary in underwritten offerings) and take all such other reasonable
actions in connection therewith (including those reasonably requested by
the managing underwriters, if any, or the holders of a majority in
aggregate principal amount of the Transfer Restricted Notes being sold)
in order to expedite or facilitate the disposition of such Transfer
Restricted Notes, and, whether or not an underwriting agreement is
entered into and whether or not the registration is an underwritten
registration, (i) make such representations and warranties to the holders
of such Transfer Restricted Notes and the underwriters, if any, with
respect to the business of the Issuers and their subsidiaries (including
with respect to businesses or assets acquired or to be acquired by any of
them), and the Shelf Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, in form, substance and scope as are customarily made by issuers
to underwriters in underwritten offerings, and confirm the same if and
when customarily requested; (ii) use their best efforts to obtain
opinions of counsel to the Issuers and updates thereof relating to the
applicable Registration Statement and the Notes, Exchange Notes or Private
Exchange Notes covered thereby in customary form (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, and Special Counsel to the holders of
the Transfer Restricted Notes being sold), addressed to each selling holder
of Transfer
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Restricted Notes and each of the underwriters, if any, covering the
matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Special
Counsel and the managing underwriters, in any; (iii) use their best efforts
to obtain customary "cold comfort" letters and updates thereof from the
independent certified public accountants of the Issuers (and, if necessary,
any other independent certified public accountants of any subsidiary of the
Issuers or of any business acquired by an Issuer or any such subsidiary for
which financial statements and financial data is, or is required to be,
included in the Shelf Registration Statement), addressed (where reasonably
possible) to each selling holder of Transfer Restricted Notes and each of
the underwriters, if any, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings; (iv) if an underwriting agreement
is entered into, the same shall contain customary indemnification
provisions and procedures (or such other provisions and procedures
acceptable to holders of a majority in aggregate principal amount of
Transfer Restricted Notes covered by such Shelf Registration Statement
and the managing underwriters, if any); and (v) deliver such documents and
certificates as may be reasonably requested by the holders of a majority
in aggregate principal amount of the Transfer Restricted Notes being
sold, their Special Counsel and the managing underwriters, if any, to
evidence the continued validity of the representations and warranties made
pursuant to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Issuers;
(m) In the case of a Shelf Registration, make available for
inspection by a representative of the holders of Transfer Restricted Notes
being sold, any underwriter participating in any such disposition of
Transfer Restricted Notes, and any attorney, consultant or accountant
acting for the holders of a majority in aggregate principal amount of such
Transfer Restricted Notes or such underwriter, at the offices where
normally kept, during reasonable business hours, all relevant financial
and other records, pertinent corporate documents and properties of the
Issuers and their subsidiaries (including with respect to businesses and
assets acquired or to be acquired to the extent that such information is
available to the Issuers),
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and cause the officers, directors, agents and employees of the Issuers and
their subsidiaries (including with respect to businesses and assets
acquired or to be acquired to the extent that such information is available
to the Issuers) to supply all information in each case reasonably requested
by any such representative, underwriter, attorney, consultant or
accountant in connection with such Shelf Registration; provided, however,
that such persons shall first agree in writing with the Company that any
information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless and to the
extent that (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of
regulatory authorities, (ii) disclosure of such information is required by
law (including any disclosure requirements pursuant to Federal securities
laws in connection with the filing of the Shelf Registration Statement
or the use of any Prospectus), (iii) such information becomes generally
available to the public other than as a result of a disclosure or failure
to safeguard such information by such person or (iv) such information
becomes available to such person from a source other than the Issuers and
their subsidiaries and such source is not bound by a confidentiality
agreement;
(n) Provide an indenture trustee for the Notes and/or the Exchange
Notes and Private Exchange Notes, as the case may be, and cause an
indenture to be qualified under the TIA not later than the effective date
of the first Registration Statement relating to the Notes and/or the
Exchange Notes and Private Exchange Notes, as the case may be; and if such
indenture shall be the Indenture, in connection therewith, cooperate with
the Trustee and the holders of the Notes and/or the Exchange Notes and
Private Exchange Notes, to effect such changes to the Indenture, if any, as
may be required for the Indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable efforts to cause the
Trustee to execute, all customary documents as may be required to effect
such changes, and all other forms and documents required to be filed with
the SEC to enable the indenture to be so qualified in a timely manner;
(o) Comply with all applicable rules and regulations of the SEC and
make generally available to their
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securityholders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158, no later than 45 days after the
end of any 12-month period (or 90 days after the end of any 12-month period
if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Notes are sold to underwriters in a
firm commitment or reasonable efforts underwritten offering and (ii) if not
sold to underwriters in such an offering, commencing on the first day of
the first fiscal quarter after the effective date of a Registration
Statement, which statement shall cover said period, consistent with the
requirements of Rule 158; and
(p) Cooperate with each seller of Transfer Restricted Notes covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Transfer Restricted Notes and their respective
counsel in connection with any filings required to be made with the
National Association of Securities Dealers, Inc.
The Issuers may require a holder of Transfer Restricted Notes to be
included in a Registration Statement to furnish to the Issuers such information
regarding the distribution of such Transfer Restricted Notes as is required by
law to be disclosed in such Registration Statement and the Issuers may exclude
from such Registration Statement the Transfer Restricted Notes of any holder who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
If any such Registration Statement refers to any holder by name or
otherwise as the holder of any securities of an Issuer, then such holder shall
have the right to (i) require 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 Issuers'
securities covered thereby and that such holding does not imply that such holder
will assist in meeting any future financial requirements of the Issuers, or (ii)
in the event that such reference to such holder by name or otherwise is not
required by the Securities Act, 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.
22
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In the case of a Shelf Registration pursuant to Section 3 hereof, each
holder of Transfer Restricted Notes agrees by acquisition of such Transfer
Restricted Notes that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 5(c)(ii), 5(c)(iii),
5(c)(iv) or 5(c)(v) hereof, such holder will forthwith discontinue disposition
of such Transfer Restricted Notes covered by such Registration Statement or
Prospectus until such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(j) hereof, or until it is advised
in writing by the Company that the use of the applicable Prospectus may be
resumed, and, in either case, has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus
6. Registration Expenses
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers whether or not
any Registration Statement is filed or becomes effective and whether or not any
Notes, Exchange Notes or Private Exchange Notes are issued or sold pursuant to
any Registration Statement. The fees and expenses referred to in the foregoing
sentence shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (B) in compliance with securities or Blue Sky laws), (ii) printing expenses
(including, without limitation, expenses of printing certificates for Notes,
Exchange Notes and Private Exchange Notes in a form eligible for deposit with
The Depository Trust Company and of printing Prospectuses), (iii) reasonable
fees and disbursements of counsel for the Issuers and the Special Counsel (not
to exceed one firm of counsel), (iv) fees and disbursements of all independent
certified public accountants referred to in Section 2(e) and Section 5(l)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (v) if
required, the reasonable fees and expenses of any "qualified independent
underwriter" and its counsel as may be required by the rules and regulations of
the National Association of Securities Dealers, Inc., and (vi) fees and
expenses of all other persons retained by the Issuers. In addition, the Issuers
shall pay their internal expenses (including, without limitation, all salaries
and expenses of their respective officers and employees performing legal or
accounting duties) and the expense of
23
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any annual audit. Notwithstanding the foregoing or anything in this Agreement
to the contrary, each holder of Transfer Restricted Notes shall pay all
underwriting discounts and commissions of any underwriters with respect to any
Notes, Exchange Notes or Private Exchange Notes sold by or on behalf of it.
7. Indemnification
(a) The Issuers agree, jointly and severally, to indemnify and hold
harmless (i) the Initial Purchaser, each holder of Notes, Exchange Notes and
Private Exchange Notes and each Participating Broker-Dealer (each such person,
an "Indemnified Holder"), (ii) each person, if any, who controls (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) any of the
foregoing (any of the persons referred to in this clause (ii) being hereinafter
referred to as a "controlling person"), and (iii) the respective officers,
directors, partners employees, representatives and agents of the Initial
Purchaser, each holder of Notes, Exchange Notes and Private Exchange Notes, each
Participating Broker-Dealer and any controlling person (any person referred to
in clause (i), (ii) or (iii) may hereinafter be referred to as an "Indemnified
Person"), from and against any and all losses, claims, damages, liabilities and
judgments arising out of or relating to any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary prospectus or in any amendment or supplement thereto, or arising
out of or relating to 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 any Prospectus or preliminary prospectus or supplement
thereto, in light of the circumstances under which they were made) not mis-
leading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by or arise out of any untrue statement or omission or
alleged untrue statement or omission based upon information relating to any
Indemnified Person furnished in writing to the Issuers by or on behalf of such
Indemnified Person expressly for use therein; provided that the foregoing
indemnity with respect to any preliminary prospectus shall not inure to the
benefit of any Indemnified Person from whom the person asserting such losses,
claims, damages, liabilities and judgments purchased securities if such untrue
statement or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus and a copy of
the Prospectus shall not have been
24
25
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furnished to such person in a timely manner due to the wrongful action or
wrongful inaction of such Indemnified Person.
(b) In case any action shall be brought against any Indemnified
Person, based upon any Registration Statement or any such Prospectus or
preliminary prospectus or any amendment or supplement thereto and with respect
to which indemnity may be sought against the Issuers hereunder, such Indemnified
Person shall promptly notify the Issuers in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person and payment of all fees and expenses
incurred by the Issuers in the assumption of such defense. Any Indemnified
Person shall have the right to employ separate counsel in any such action and
participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Person, unless (i) the employment
of such counsel shall have been specifically authorized in writing by the
Issuers, (ii) the Company shall have failed to assume the defense and employ
counsel or pay all such fees and expenses of the assumption of such defense or
(iii) the named parties to any such action (including any impleaded parties)
include both such Indemnified Person and an Issuer 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 any
such Issuer (in which case the Company shall not have the right to assume the
defense of such action on behalf of such Indemnified Person, it being
understood, however, that the Issuers 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 any local counsel) for all such Indemnified Persons,
which firm shall be designated in writing by such Indemnified Persons, and that
all such reasonable fees and expenses shall be reimbursed as they are incurred
upon presentation to the Issuers of invoices setting forth and describing
such fees and expenses in reasonable detail). The Issuers shall not be liable
for any settlement of any such action effected without their written consent but
if settled with the written consent of the Issuers, the Issuers agree, jointly
and severally, to indemnify and hold harmless each Indemnified Person from and
against any loss or liability by reason of such settlement. No Issuer shall,
without the prior written consent of each Indemnified Person, effect any
settlement of any pending or threatened proceeding in respect of which any
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Indemnified Person is a party and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement includes an unconditional
release of such Indemnified Person from all liability on claims that are the
subject matter of such proceeding.
(c) In connection with any Registration Statement pursuant to which an
Indemnified Holder offers or sells Transfer Restricted Notes, such Indemnified
Holder agrees, severally and not jointly, to indemnify and hold harmless (i) the
Issuers, (ii) each of their respective directors and officers and (iii) any
person controlling an Issuer within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (the persons referred to in clauses (i),
(ii) and (iii) hereinafter referred to as "Issuer Indemnified Persons") from and
against any and all losses, claims, damages, liabilities and judgments arising
out of or relating to any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
prospectus or in any amendment or supplement thereto, or arising out of or
relating to any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement therein (in the
case of any Prospectus or preliminary prospectus or supplement thereto, in light
of the circumstances under which they were made) not misleading, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions made in a Registration Statement, Prospectus or preliminary prospectus
or in any amendment or supplement thereto in reliance on and in conformity with
written information furnished to any of the Issuers by such Indemnified Holder
expressly for use in such Registration Statement, Prospectus or preliminary
prospectus or in any amendment or supplement thereto. In any such case in which
any action shall be brought against an Issuer Indemnified Person based on such
Registration Statement, Prospectus or preliminary prospectus or in any amendment
or supplement thereto and in respect of which indemnity may be sought against an
Indemnified Holder, such Indemnified Holder shall have the rights and duties
given to the Issuers (except that if an Issuer shall have assumed the defense
thereof, such Indemnified Holder shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Indemnified Holder),
and the Issuer Indemnified Persons shall have the rights and duties given to the
Indemnified Persons by Section 7(b) hereof.
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(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to herein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by each indemnifying party on the one
hand and the indemnified party on the other hand from the offering of the Notes,
the Exchange Notes or the Private Exchange Notes, as the case may be (it being
expressly understood and agreed that the relative benefits received by the
Issuers from the offering of the Notes, Exchange Notes or Private Exchange
Notes, as the case may be, shall be the amount of the net proceeds received by
the Company from the sale of the Notes to the Initial Purchaser), 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 each indemnifying
party on the one hand and the indemnified party on the other hand in connection
with the statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the each indemnifying party on the one
hand the indemnified party on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by an indemnifying party or such indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company and the Initial Purchaser agree that it would not be just
and equitable if contribution pursuant to this Section 7(d) were determined by
pro rata allocation (even if all Indemnified Persons were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages, liabilities or judgments referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim.
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Notwithstanding the provisions of this Section 7, no Indemnified Person shall
be required to contribute any amount in excess of the amount by which the net
proceeds received by it in connection with the sale of the Notes, Exchange Notes
or Private Exchange Notes contemplated by this Agreement (or, in the case of an
underwriter that is an Indemnified Person, the total underwriting discounts
received by such underwriter) exceeds the amount of any damages which such
Indemnified Person has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Indemnified Person's obliga-
tions to contribute pursuant to this Section 7(d) are several in proportion to
the respective amount of Notes, Exchange Notes or Private Exchange Notes
included in any such Registration Statement by each Indemnified Person and not
joint.
8. Rule 144A
Each of Issuers shall use its best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time it is not required to file such reports but in
the past had been required to or did file such reports, it will, upon the
request of any holder of Transfer Restricted Notes, make available other
information as required by, and so long as necessary to permit sales of Transfer
Restricted Notes pursuant to Rule 144A. Notwithstanding the foregoing, nothing
in this Section 8 shall be deemed to require an Issuer to register any of its
securities pursuant to the Exchange Act,
9. Underwritten Registrations
If any of the Transfer Restricted 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 administer the offering
will be selected by the holders of a majority in aggregate principal amount of
the Transfer Restricted Notes included in such offering, subject to the consent
of the Company (which will not be unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such Transfer Restricted Notes on the
basis reasonably provided in
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any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) Remedies. In the event of a breach by an Issuer or by a holder of
Notes, Exchange Notes or Private Exchange Notes of any of its obligations under
this Agreement, each holder of Notes, Exchange Notes or Private Exchange Notes
and each Issuer, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. Notwithstanding the provisions of Section 4
hereof, the Issuers and each holder of Notes, Exchange Notes and Private
Exchange Notes agree that monetary damages would not be adequate compensation
for any loss incurred by reason of a breach of any of the provisions of this
Agreement and each hereby further agrees that, in the event of any action for
specific performance in respect of such breach, it shall waive the defense
that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers will not enter into any
agreement with respect to their securities that is inconsistent with the rights
granted to the holders of Notes, Exchange Notes and Private Exchange Notes and
Indemnified Persons in this Agreement or otherwise conflicts with the
provisions hereof. Without the written consent of the holders of a majority in
aggregate principal amount of the outstanding Transfer Restricted Notes, the
Issuers shall not grant to any person any rights which conflict with or are
inconsistent with the provisions of this Agreement.
(c) No Piggyback on Registrations. The Issuers shall not grant to any
of their securityholders (other than the holders of Transfer Restricted Notes in
such capacity) the right to include any of their securities in any Registration
Statement other than Transfer Restricted Notes.
(d) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the holders
of not less than a majority of the then outstanding aggregate
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principal amount of Transfer Restricted Notes; provided, however, that, for
the purposes of this Agreement, Transfer Restricted Notes that are owned,
directly or indirectly, by the Issuers or any of their Affiliates are not deemed
outstanding. 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 Transfer Restricted Notes whose securities are being sold
or tendered pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other holders of Transfer Restricted Notes may
be given by holders of a majority in aggregate principal amount of the Transfer
Restricted Notes being sold or tendered by such holders pursuant to such Regis-
tration Statement; provided, however, that the provisions of this sentence may
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence. Notwithstanding the
foregoing, no amendment, modification, supplement, waiver or consent with
respect to Section 7 shall be made or given otherwise than with the prior
written consent of each Indemnified Person affected thereby.
(e) Notices. All notices and other communications provided for herein
shall be made in writing by hand-delivery, next-day air courier, certified
first-class mail, return receipt requested, telex or telecopier:
(i) if to an Issuer, to the Company as provided in the Purchase
Agreement,
(ii) if to the Initial Purchaser, as provided in the Purchase
Agreement, or
(iii) if to any other person who is then the registered holder of
Notes, Exchange Notes or Private Exchange Notes, to the address of such
holder as it appears in the register therefor of the Company.
Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given: when delivered by hand,
if personally delivered; one Business Day after being timely delivered to a
next-day air courier; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
00
00
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(x) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each holder of Notes, Exchange Notes
and Private Exchange Notes and each Indemnified Person. The Issuers may not
assign any of their rights or obligations hereunder (other than pursuant to a
merger or consolidation) without the prior written consent of each holder of
Transfer Restricted Notes and each Indemnified Person. Notwithstanding the
foregoing, no successor or assignee of an Issuer shall have any of the rights
granted under this Agreement until such person shall acknowledge its rights
and obligations hereunder by a signed written statement of such person's
acceptance of such rights and obligations.
(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) Governing Law; Submission to Jurisdiction. THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK.
THE ISSUERS HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT,
AND EACH IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
(i) Severability. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law. 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 reasonable 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
33
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terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
All references made in this Agreement to "Section" and "paragraph" refer to such
Section or paragraph of this Agreement, unless expressly stated otherwise.
(k) Guarantors to Become Party Hereto. So long as any Transfer
Restricted Notes shall be outstanding, the Company shall cause each Guarantor to
become a party hereto by executing a counterpart of this Agreement and
delivering such counterpart to the Initial Purchaser.
(1) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and is 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 Issuers with
respect to the Notes, the Exchange Notes and the Private Exchange Notes. This
Agreement supersedes all prior agreements and understandings between the parties
with respect to such subject matter.
34
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first written above.
THE COMPANY:
LDM TECHNOLOGIES, INC.
By: Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: Chairman of the Board
and Secretary
THE GUARANTORS:
LDM HOLDINGS, LLC
By: Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: Chairman of the Board
and Secretary
LDM TECHNOLOGIES COMPANY
By: Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: Chairman of the Board
and Secretary
LDM TECHNOLOGIES COMPANY
By: Xxx Xxxxxx
--------------------------------------
Name: Xxx Xxxxxx
Title: Chairman of the Board
and Secretary
35
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THE INITIAL PURCHASER:
XXXXX XXXXXX INC.
By: Xxxxxx X. XxXxxxx Xx.
---------------------------
Name: Xxxxxx X. XxXxxxx Xx.
Title: Vice President
